Articles by Simone Yoder

11th Circuit Excludes Plaintiff’s Expert on Human Walking Behavior

In Torres v. Carnival Corp., the Court was asked to determine whether Carnival Cruise lines created an unreasonably dangerous condition on the cruise ship, Carnival Splendor.  The case involved a plaintiff who was wearing platform shoes when she stumbled and fell, breaking her shoulder, as she was disembarking the cruise ship.  Plaintiff claimed her fall was caused by a raised threshold that had been partially hidden by a mat or similar material that disguised the raised surface.


Plaintiff hired a “human-factors engineer” to opine on the cause of the fall.  The expert testified that the height of the carpet affixed to the ramp where the accident occurred interrupted the “swing phase of Claimant’s foot” and caused her to fall.   Carnival moved to exclude the expert, and also moved for summary judgment as to the merits of the claim.  The motion to exclude was granted, as the judge stated that the expert testimony would unnecessarily complicate the case.  The judge explained, among other things, that the testimony would not be helpful, as jurors could readily comprehend the normal mechanics of walking and the various reasons that one might fall, including tripping on a rug or floor mat.  In addition, the district court determined that summary judgment was appropriate as the plaintiff could not prove that the cruise ship had breached its duty by creating a dangerous condition of which it was actually or constructively aware.


Plaintiff appealed to the U.S. Court of Appeals for the 11th Circuit.  The appellate court agreed that the human-factors expert was properly excluded, and upheld prior 11th Circuit precedent that exclusion of expert testimony regarding the causes of a fall is reasonable, as causes of a fall are “within the common knowledge of the jurors, and thus the probative value of such testimony is  outweighed by the danger of prejudice.”  The 11th Circuit further determined that plaintiff had failed to present any evidence that Carnival Cruise Lines had breached its duty to provide “ordinary and reasonable care under the circumstances.” Plaintiff was the sole passenger to experience trouble when crossing the disembarkation threshold, and admittedly was not paying attention as she walked over the threshold. The 11th Circuit held, without any showing that Carnival Cruise Lines’ negligence caused Plaintiff to stumble, the district court’s granting of summary judgment was appropriate.


Torres v. Carnival Corp.


Benefits Review Board Addresses Competing Audiograms and Longshore Hearing Loss

Claimant was employed by Employer from 1977 to 1987.  Thereafter, he worked for a number of other non-maritime employers.  In 2006, Claimant underwent a pre-employment audiogram for a non-maritime employer.  At that time, it was determined that he possessed a 10% binaural hearing impairment.  Claimant was then re-evaluated in 2011, at which time he was found to have a 24.7% binaural hearing impairment.  Employer accepted the 10% impairment and paid permanent partial disability benefits for same.  Claimant contested the payment as rendered, alleging that he was entitled to an additional 14.7% permanent partial disability to compensate him for the entirety of his hearing loss as per the 2011 audiogram.

The ALJ determined that Claimant was limited to a 10% loss, stating that Employer had successfully rebutted the 20(a) presumption and finding that the 2006 audiogram was more probative of Claimant’s hearing loss upon leaving covered employment because it was performed closer in time to that employment.  Claimant appealed.  He alleged that the 2006 audiogram was not the most reliable and that Employer should be liable for the entirety of any hearing loss.

Noting that the Supreme Court has found that noise-induced occupational hearing loss is not progressive, but is complete when the exposure ceases, the BRB declined to find that Employer was liable for the entirety of the hearing loss.  The BRB further concluded that the more reliable evidence of Claimant’s work-related hearing loss was the 2006 audiogram, as it was taken nearer in time to Claimant’s last day of covered employment.  Essentially, the BRB determined that where there are two audiograms probative of the degree of hearing loss, the more reliable evidence of work-related hearing loss is the audiogram that is performed nearest to the last date of covered employment.

Ostarly v. Huntington Ingalls, Inc., BRB No. 13-0539 (May 28, 2014).

BRB: Grocery Worker Could Not Satisfy Longshore Status Requirement

Claimant was responsible for transporting groceries from employer’s inland warehouse to staging areas within a port.  He was injured while moving an ice chest from his truck to a grocery box, which grocery box was destined to be loaded on a supply boat for transport to an offshore rig.  Claimant alleged entitlement to benefits under the Longshore Act as a result of his injury.

The ALJ initially determined that Claimant satisfied the elements for coverage.  However, Employer appealed, and the Benefits Review Board reversed.  In doing so, the BRB looked at two specific issues:

First, the BRB determined whether Claimant was precluded from coverage under the Act by application of the vendor exclusion.  The BRB noted that the term employee as defined by the Act did not include persons employed by vendors temporarily doing business on Employer’s premises and who are not normally engaged in the work of the Employer.  The BRB, affirming the ALJ’s decision on this point, concluded that the vendor exclusion did not apply.  The BRB found, as had the ALJ, that while Claimant was employed by a vendor and was only temporarily doing business at the facility of a maritime employer, Claimant was still doing work normally performed by a dock crew.  In that regard the BRB noted that Claimant was working along with the dock employees to unload supplies from his truck,  which supplies would be loaded onto a supply boat and transported to an offshore rig.  Thus, because the Claimant was performing work normally performed by the dock crew, the vendor exclusion could not be applied to deny Claimant coverage under the Act.

The BRB next looked at whether Claimant was performing maritime work.  The ALJ had determined that Claimant was performing maritime work because Claimant’s job involved assisting with the unloading of groceries from his truck to temporary staging areas for eventual loading onto a supply boat, or in some cases, direct loading onto a supply boat by the dock employees.  The BRB reversed the ALJ’s finding in this regard, holding instead that Claimant was not doing maritime work at the time of his accident.  The BRB noted that Claimant did not load or unload ships.  The BRB further noted that Claimant’s work was not an intermediate step in maritime transport, but was the last step of land transport.  Relying on Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977), wherein the U.S. Supreme Court declined to find coverage under the Longshore Act for “employees such as truck drivers, whose responsibility on the waterfront is essentially to pick up or deliver cargo unloaded from or destined for maritime transportation,” the BRB found that Claimant in this case was not covered.   The BRB consequently reversed the ALJ and determined that Claimant was not engaged in maritime employment and the BRB, therefore, declined to find that Claimant was covered by the Act.

Jacobs v. G&J Land and Marine Food distributors, et. al., BRB No. 13-0353 (Apr. 3, 2014).

Florida Court Strikes Award of Attorney’s Fees to a Seaman Under Florida’s Offer of Judgment Statute

Plaintiff worked for Employer and made a claim for Jones Act negligence, failure to treat, maintenance and cure, unearned wages and unseaworthiness.  Prior to trial, Plaintiff served an offer of judgment on Employer.  Employer objected to the propriety of the offer of judgment and moved to strike.  Nonetheless, following a trial on the merits, a jury found in favor of Plaintiff and awarded attorney’s fees and costs pursuant to the state’s offer of judgment laws.  Employer appealed.

The sole issue on appeal was whether the award of attorney’s fees was permissible.  The Court of Appeal determined that it was not, as such an award under Florida’s offer of judgment statute conflicts with maritime law.  The Court,  thus, overruled the state court on the award of attorney’s fees, and receded from prior precedent finding the contrary.

In doing so, the Court of Appeal noted that federal maritime law follows the American Rule with respect to awards of attorney’s fees.  Under the American Rule, attorney’s fees are permitted only when 1) there is an exception provided for under federal statute, 2) there is an enforceable contractual obligation providing for fees, or 3) the non-prevailing party engaged in bad-faith.

The Court noted that state courts could entertain maritime causes of action, but that state law may only supplement federal maritime law if the state law does not conflict with federal law or interfere with uniformity.

Citing to First Circuit, Third Circuit, and Fifth Circuit decisions, the Florida Court of Appeal noted that application of state fee-shifting statutes such as the Florida offer of judgment statute, conflicts with maritime law and violates the important principle of uniformity.  The Florida Court of Appeal, therefore, declined to uphold the lower court’s award of attorney fees to a seaman under Florida’s offer of judgment laws.

Royal Caribbean Cruises, Ltd. v. Cox, — So.3d —- (Fla. 3d DCA 2014)