Archives for November 2012

Keeping Good Witness Statements From Going Bad

When a marine casualty occurs, attorneys and adjusters are often dispatched to investigate the cause of the accident and assess the extent of damage or injury.  The best source of such information is typically the witnesses on the scene.  Because a person’s memory can be fleeting, it may be beneficial to obtain written or recorded statements from all witnesses with pertinent, firsthand information.

Statements can be used both to refresh and witness’s memory if he is called upon to provide testimony at a later date and to keep a potentially unpredictable witness honest so that he doesn’t subsequently change his story.  In either case, it is critically important to carefully consider the substance of what is to be preserved before it is permanently memorialized in a statement.

In a perfect world, a witness’s statement will only contain information that is helpful to your own claim or defense.  But sometimes a statement can unintentionally turn out to be as harmful as it may be helpful.  When this happens, you certainly would not want the statement to be divulged to your adversary; and rest assured that when litigation results, all witness statements will be aggressively sought after through discovery.  For this reason, the timing of when a statement is taken can be as important as what it contains.

Federal and state laws generally protect the sanctity of statements taken in the prosecution or defense of a lawsuit.  However, your opponent might be able to obtain the statements of your witnesses if he can show that (1) he has a substantial need for the statement and (2) he is unable to obtain the “substantial equivalent” by other reasonable means.  The timing of when a statement was obtained has a lot to do with whether it may have to be shared.

As a general rule, a statement obtained immediately after an accident can be compelled from the party who obtained it because it reflects the witness’s recollection when it was most fresh in his mind.  If the statement was obtained after the passage of a considerable length of time, the party wanting his statement can usually obtain the “substantial equivalent” by taking the witness’s deposition.  In that case, the witness’s statement will not be subject to production unless it contains relevant information the witness cannot recall.

Circumstances surrounding a casualty investigation often dictate that statements be taken immediately and that the statements contain as much information as possible.  But because contemporaneous statements may be subject to subsequent disclosure to others, great care should be taken to insure that they don’t include something that could prove harmful to your case down the line.

Note: This article first appeared in WorkBoat magazine.  Check out WorkBoat’s constantly and consistently updated website for up-to-date maritime information.

First Circuit: Neither Suicide Nor Misadventure Fall Within the Scope of the Zone of Special Danger Doctrine

Decedent was employed on a secure military base in Saudi Arabia.  One morning, his on-site girlfriend discovered Decedent’s body hanging from a noose.  Decedent was wearing pink or red toenail polish, women’s makeup and a pair of blue sweatpants.  Decedent’s widow filed a Defense Base Act (“DBA”) claim for death benefits on her behalf and on behalf of the Decedent’s three children.  Eventually, both an administrative law judge and the Benefits Review Board (“BRB”) denied the claim.  This appeal to the United States Court of Appeals for the First Circuit followed.  The First Circuit focused on two issues, jurisdiction and the zone of special danger, and ultimately denied benefits.

Proper Appellate Procedure in DBA Claims:

In some federal Circuits, litigants may appeal BRB decisions in DBA cases directly to a federal Court of Appeals.  In other Circuits, litigants must first appeal BRB decisions to the appropriate federal district court and then, if necessary, an appeal to the federal Court of Appeals may follow.  The reason for the split in authority stems from the 1972 amendments to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  In 1972, Congress amended the LHWCA to “modernize” the ordinary scheme for compensation.  All LHWCA claims are appealed from the BRB directly to the appropriate federal Court of Appeals.   The problem is that Congress did not amend the DBA’s judicial review provision at the same time.

Now, the First Circuit has specifically held that DBA claims may be appealed from the BRB directly to the First Circuit, without first stopping at the district court level.  In effect, this deepens the Circuit split, but the decision makes sense.  Most litigants–including the litigants in this case–desire a streamlined appellate process.   The only issue with the First Circuit’s appellate decision is that it used loose, policy-driven language to justify its decision:

Nevertheless, the Defense Base Act can b legitimately read to confer jurisdiction upon us, and this reading accords with the overall congressional policy reflected in the 1972 Longshore Act amendments.  Congress likely gave no thought at all to the wrinkle that concerns us; but, where statutory language permits a given reading and Congress’ policy will be fostered by it, we think that reading should prevail–even if, as here, that statutory language would also permit a contrary reading at odds with Congress’ statutory policy.

Suicide, Misadventure, and the Zone of Special Danger:

After disposing of the jurisdiction issue, the First Circuit addressed the merits of the claim.  It agreed that denial of coverage was reasonable.  Either suicide or misadventure were possible explanations for Deccedent’s death.  Both explanations were sufficient to rebut the Section 20(a) presumption in favor of coverage.  At that point in time, each party was required to offer evidence in support of their contentions.

The widow’s evidence included testimony that Decedent was planning a trip home for Christmas, and that Decedent was upbeat and happy prior to his death.  The First Circuit was not convinced:

But neither suicide nor misadventure is ruled out by the fact that [Decedent] was discovered with his head in a noose but his feet on the floor, nor by the absence of a suicide note, by no means universal in suicide cases, and hardly to be expected if the cause were misadventure.  In all events, the probability of a covered cause, as against realistic probabilities plainly present in this case, depends on whether hypothetical possibilities have support in evidence in the case at hand.  So far as appeas there is no evidence of a covered cause.

The widow also offered a few “theories” that could possibly explain her husband’s death but the theories were unavailing.  And the First Circuit phrased these theories in such a way as to suggest that it was displeased, especially when there was no evidence to support the claims other than an expert who testified that the theories were “not far-fetched.”  The widow argued:

  • that her husband may have been killed by conservative Muslim vigilantes who were offended by his alleged extramarital affair or alleged cross-dressing;
  • that her husband may have learned that one of his co-workers was involved in arms smuggling ro selling military intelligence, that the co-worker may have killed [Decedent] to silence him, and that [Employer] may have been complicit in the cover-up; and
  • that her husband had been investigating “a threat” to Americans in the area and that he had “offended the Saudis” in the course of the investigation; and that [Decedent’s] death might have been related to this investigation.

While Decedent’s death was a tragedy, and the widow’s and children’s claims are sympathetic, the DBA is not life insurance.  The “zone of special danger” doctrine could not  save her claim.  “Neither suicide in the ordinary case . . . nor harm ‘resulting from recreational activities that are neither reasonable nor foreseeable,’ . . . fall within the scope of the zone-of-special-danger doctrine.”

Truczinskas v. Dir., OWCP, — F.3d —- (1st Cir. 2012).

Fifth Circuit: Per Diem Was More Akin to Wages In This Case

The Fifth Circuit recently issued an unpublished Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision.  Decedent, an electrician  from Warren, Texas, suffered a fatal heart attack while working on a drilling rig in Vicksburg, Mississippi.  At the time of his death, he worked twelve-hour days seven days a week.  Decedent was staying at a motel and he received $50 per diem for each day worked in Vicksburg.   Following his death, Decedent’s widow made a claim for death benefits.  The parties put two issues before the Administrative Law Judge: (1) whether the Section 20(a) presumption applied to the case, and (2) the correct amount of per diem to include in the Decedent’s average weekly wage (“AWW”) calculation.

As for the Section 20(a) issue, the Fifth Circuit determined that the statutory presumption did, in fact, apply.  The presumption applies after a claim establishes a prima facie showing of a work injury.  To make such a showing, a claimant must prove that (1) he suffered a harm and (2) a condition of the workplace that could have caused, aggravated, or accelerated the harm.  Here, Decedent’s heart attack was a “harm” and his working conditions (i.e. climbing stairs, carrying equipment, and living away from family) could have caused, aggravated or accelerated the harm. 

As for the per diem issue, the Fifth Circuit determined that the entire $50 per diem was included within the AWW.  Previously, the Fifth Circuit has included non-taxable compensation as wages.  In B & D Contracting, the court included per diem payments as “wages” when the payments “played the role of money wages.”  The court asked whether the payments:

[W]ere calculated based on the number of hours worked; they were paid in the same paycheck as the employee’s normal wages; the per diem was an unrestricted payment, unrelated to actual costs of meals, lodging, or travel; the same per diems was paid to all employees regardless of where they live; and the per diem constituted almost half of [the employee’s] gross pay.

Here, the per diem payments were disbursed for days actually worked; the payments were made in cash at the same time as the paycheck; the employees did not have to substantiate any expenses prior to receiving the per diem amount; and the payments were not included in W-2 statements.  The court reasoned that these per diem payments were more closely akin to wages than compensation of expenses.

Gonzales Elec. Sys. v. Dir., OWCP, No. 12-60116, 2012 WL 5374162 (5th Cir. Nov. 2, 2012).

Pipeline Pontoon Qualifies as a Vessel

Plaintiffs were operating a pleasure boat when it struck a pipeline pontoon owned by Defendant.  Plaintiffs alleged that they sustained injuries as a result of the accident and filed suit against Defendant alleging negligence under Louisiana law and general maritime law.  Defendant asserted in its answer the protection of the Limitation of Liability Act.  The question before the Court was whether the pipeline pontoon qualified as a vessel for purposes of the Limitation of Liability Act.

Plaintiff argued that the pipeline pontoon did not qualify as a vessel and that Defendant was therefore not entitled to protection of the Limitation of Liability Act.  Defendant argued that the pipeline pontoon was a vessel, entitling it to protection.

Plaintiff maintained that the pipeline pontoon’s lack of objective characteristics typical of a vessel indicated that it did not qualify as a vessel.  Defendant argued that the pipeline pontoon was a watercraft capable of transportation on water, and that it was actually used to transport pipe.  The Court found that the pipeline pontoon qualified as a vessel because its use on water was practical, not theoretical, and that it could actually be used as a means of transportation on water.

Nassri v. Inland Dredging Co., 2012 WL 5439004 (M.D. La. 2012).