Fifth Circuit Vacates Summary Judgment and Allows Consideration of Plaintiff’s Expert

The plaintiff allegedly sustained injuries when he fell on a vessel owned by his employer.  He filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana, alleging negligence under the Jones Act and unseaworthiness of the vessel.  The employer eventually filed a Motion for Summary Judgment and argued for dismissal of the case based on the plaintiff’s inability to meet his burden of proof with respect to causation of his injuries.  The plaintiff then filed an opposition memorandum and submitted a report by his maritime expert.  The District Court refused to consider the expert report because while it was signed, it was unsworn.  Summary judgment was granted and the case was dismissed.  The plaintiff appealed to the Fifth Circuit.

 

The Fifth Circuit noted that in granting the motion, the District Court had incorrectly relied on a prior version of Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment.  Rule 56 was amended in 2010, including a subsection outlining the means of providing documentary support or opposition to a motion for summary judgment.  In rejecting the report, the District Court had looked to the prior rule regarding sworn affidavits.  The Fifth Circuit noted that the new Rule 56 clearly allows for the consideration of “documents . . . declarations, [and] other materials” in addition to sworn affidavits.  For purposes of summary judgment, the document may be presented in a form that would not be admissible at trial.  The plaintiff could later present the same evidence at trial in an admissible form.  In other words, the fact that the expert report was not a sworn affidavit was of no consequence for purposes of the Motion for Summary Judgment.  The Fifth Circuit vacated the granting of summary judgment and remanded the case to the District Court for consideration of the expert report.

 

Lee v. Offshore Logistical and Transport, LLC

U.S. Fifth Circuit reverses district court’s grant of summary judgment, finding that ROV Technician was not a seaman as a matter of law

The United States Court of Appeals for the Fifth Circuit held that a district court erred in finding that a plaintiff, who was a technician who navigated and controlled remotely operated vehicles (“ROVs”) for offshore applications, qualified as a “seaman” as a matter of law. ROVs are unoccupied mechanical devices used to service and repair offshore, underwater drilling rigs. Technicians navigate and control ROVs aboard an ROV Support Vessel, to which the ROVs remain tethered while in use. Technicians work inside a windowless shipping container converted into an ROV command center located on the support vessel. In the context of his claim under the Fair Labor Standards Act (“FLSA”) to recover unpaid wages for overtime worked during his employment, the district court granted summary judgment against the plaintiff, finding that he qualified as a seaman under the FLSA and was exempt from the Act’s overtime provisions.

 

The Fifth Circuit reversed the district court’s ruling, finding that the jurisprudence upon which the district court relied was distinguishable. It focused on the fact that ROV Technicians had a completely separate command structure than that of the tankerman considered in the Coffin case relied upon by the district court. Thus, the Fifth Circuit held that the district court erred in granting the defendant’s motion for summary judgment because it had not been established as a matter of law that the seaman exemption applied. The matter was remanded to the district court for further proceedings.

 

Halle et. Al. v. Galliano Marine Service, LLC

Federal District Court Once Again Addresses Discoverability of Surveillance

The Eastern District of Louisiana recently issued another opinion interpreting Chiasson v. Zapata Gulf Marine Corp., the benchmark Fifth Circuit case that guides the discoverability of surveillance as substantive versus impeachment evidence.  Plaintiff alleged that, while employed as a Jones Act seaman, he experienced an accident that resulted in injury to his back and other parts of his body.  In filing against his employer for Jones Act benefits and other defendants for negligence under general maritime law, Plaintiff filed an expedited motion to compel production of surveillance obtained by his Jones Act employer prior to his deposition.  Employer objected to the production of surveillance arguing that surveillance was non-discoverable impeachment evidence at the present stage of litigation.  The District Court agreed that, under Chiasson, Plaintiff was entitled to production of surveillance tapes as substantive evidence, but that Chiasson did not address the timing of disclosure.  The court agreed with Employer that the proper procedure would be to produce the surveillance evidence subsequent to Plaintiff’s deposition in order to preserve the substantive and impeachment value of the surveillance evidence.

 

Krekorian v. FMC Technologies, Inc.

Fifth Circuit Rejects Vicarious Liability Claim From Personnel Basket Injury

The U.S. Fifth Circuit Court of Appeals issued an opinion today addressing the vicarious liability of a principal contractor for its independent contractors.  The Plaintiff was employed as a crane mechanic by Gulf Crane Services and was working on an offshore platform owned and operated by Dynamic Offshore Resources, LLC.  He was injured in a personnel basket transfer from a boat to the platform.  He sued Dynamic, alleging it was vicariously liable for the negligence of its subcontractors, including the crane operator.  No Dynamic personnel were present on the platform.

 

The District Court dismissed the case on summary judgment and the Plaintiff appealed to the Fifth Circuit.  The Court noted that under Louisiana law, a principal is not liable for the activities of
an independent contractor committed in the course of performing its duties under the contract, with two exceptions: 1) the principal is liable for ultrahazardous activities contracted out to an independent contractor, and 2) the principal is liable if it has operational control over the acts of the independent contractor or authorizes unsafe practices.

 

The Court determined that a personnel basket transfer is not an ultrahazardous activity, regardless of the high wind that allegedly caused the basket to suddenly fall eight feet.  The law does not consider the specific conditions of an activity to determine whether it qualifies as ultrahazardous.  Furthermore, the Court found the Plaintiff could point to no evidence that Dynamic authorized an unsafe practice.  Instead, Plaintiff testified that he specifically requested the personnel basket transfer in high winds despite his “stop work authority”.  Dynamic in no way authorized an unsafe working condition.  Therefore the Plaintiff was unable to establish that his injury fell into either exception to the vicarious liability rule and Dynamic could not be held liable for the activities of its independent contractors.  The Fifth Circuit affirmed summary judgment in Dynamic’s favor.

 

Davis v. Dynamic Offshore Resources, LLC