Court: Louisiana Court of Appeal; March 30, 1993; Louisiana; State Appellate Court
Jerry Young, a longshoreman, was awarded $1,700,000 in damages for personal injuries sustained while offloading steel beams from the M/V LORENA, owned by Armadores de Cabotaje, S.A. (ARCASA) and chartered by Empresa Nacional Siderurgica, S.A. (ENSIDESA). The trial court dismissed cross-claims between ARCASA and ENSIDESA. ENSIDESA, a Spanish company, shipped a cargo of 60-foot steel 'I-beams' from Aviles, Spain, to New Orleans in October 1982. The offloading operation, which began on November 21, 1982, was managed entirely by Cooper Stevedoring Company, Inc. (Cooper), which had contracted with ENSIDESA. Young was part of the Cooper work gang responsible for securing the bundles of steel beams for crane lifting. The crane, owned and operated by Cooper, was directed by Cooper personnel, without any involvement from ENSIDESA or ARCASA. During the offloading, the wooden dunnage used to separate the bundles had become crushed, causing bundles to rest directly on others, complicating the unloading process. The operation involved using a spreader bar to lift the beams safely.
A 'breakout wire' cable was used to facilitate the lifting of beams from the hold of the M/V LORENA. The process involved signaling between a man in the hold, a flagman, and a crane operator to lift the beams and place chains underneath them. Due to severely crushed dunnage, the longshoremen had to 'nip' the beams, which involved inserting the breakout wire as far as possible under the beams. This often required the use of pry bars to create enough space. After the wire was positioned, the crane would lift the beams so that dunnage could be placed underneath them.
On November 22, during the second day of offloading, while attempting to nip the beams, the breakout wire unexpectedly snapped as the crane lifted the beams, causing the spreader bar to wobble and swing the wire. The flagman warned the workers to flee, but the plaintiff was struck by the wire while trying to escape, resulting in personal injuries.
The case focuses on the condition of the stow, which was compromised by the crushed dunnage due to the 'H' configuration of the beams, leading to greater crushing than if they had been stacked in an 'I' configuration. There was conflicting testimony regarding the safety of the stow. The plaintiff did not assert that the stow was particularly dangerous, describing the work as standard longshoring and stating he was familiar with the tools and procedures in use. In previous depositions, he speculated that the crane’s movement or lifting too many bundles at once might have contributed to the accident, but he ultimately could not identify a definitive cause.
Witness testimonies indicated that the crane boom was stationary before the accident, and the crew was attempting to lift only four bundles of beams. The foreman of the work gang, who had extensive experience, viewed a photograph of the cargo hold and deemed the stowage safe and standard, expressing confidence in the loaders' competence. Mr. Garcia, an ENSIDESA employee, testified that from 1956 to 1985, steel beams were predominantly loaded using the 'H' method, transitioning to the 'I' method only in 1983 for beams destined for the U.S. and Canada, which buyers preferred for better condition upon arrival. He confirmed that longshoremen followed a stowage plan developed collaboratively between the vessel's master and ENSIDESA’s chief of port operations. Captain Cazon, also from ENSIDESA, stated that no complaints about the 'H' method had been received until the trial date, although U.S. and Canadian clients had requested the 'I' method. He emphasized the importance of safety in stowage planning and admitted that while the 'I' method reduces dunnage damage and minimizes cargo compression, the 'H' method was considered safer for preventing cargo shift during transit. He acknowledged that both methods took the same amount of time to load, but the beams' stability was enhanced when bundled together. Douglas Lemott, a longshoreman since 1974, was present during the accident while offloading the M/V LORENA.
Lemott testified that at the time of the accident, he and others were in the cargo hold, dealing with steel beams that were interlocked due to crushed wood dunnage. He characterized the stow as dangerous, particularly due to the challenges of safely positioning breakout wire under the beams. He acknowledged that dunnage becomes more compressed deeper in the hold and admitted that they continued offloading despite worsening conditions after the accident. Longshoreman John Porter corroborated Lemott's account, noting that while the dunnage was in good condition higher up, it deteriorated further down. He reported the worsening conditions to his foreman but was advised to proceed cautiously. Glen Reibe, the ship superintendent, indicated that while the stow was recognized as dangerous, there was no action taken to halt offloading. Joseph Johnson, the Director of Regional Loss Control for Cooper, noted the dunnage was effectively crushed and that the only option was to offload safely, believing it could be done without incident. Longshoreman Sam Douglas remarked that beams are typically stowed in the 'I' position, stating that those stowed in the 'H' crush the dunnage, complicating safety. He disputed a statement he signed for a defense investigator, claiming he did not read it and could not recall its content. Finally, marine surveyor Albert Ross, qualified as an expert in safety for stevedoring operations, testified that he had never seen steel beams loaded in the 'H' position, having supervised the 'I' method during his career.
Testimony indicated that beams were improperly stowed in an 'H' position, causing significant cargo damage due to compression of dunnage from the beams' weight. The stowage method was deemed 'hazardous' and 'dangerous,' though the witness, Ross, had no stevedoring experience and could not recall informing the ship superintendent about the dangers. He was aware that the foreman believed the cargo was in good condition. Initially uncertain about having seen a full vessel loaded with beams in that configuration, Ross later acknowledged potentially surveying the M/V LORENA and possibly three other vessels with similar stowage in February 1982. He ultimately admitted uncertainty about whether the stow condition contributed to the accident.
The trial court found both ARCASA (the vessel owner) and ENSIDESA (the charterer/loading stevedore) negligent, attributing 15% of the fault to ARCASA and 85% to ENSIDESA. Both defendants' motions for judgment notwithstanding the verdict and for a new trial were denied, leading to their appeals. ARCASA contended that the evidence did not sufficiently support a finding of its negligence related to the plaintiff's injuries. The standard of appellate review was established under federal maritime law, allowing state courts to concurrently address LHWCA cases. The court emphasized that negligence is a factual question for juries, and appellate courts typically do not overturn factual findings unless clearly erroneous. Under 33 U.S.C.A. 905 (b), a longshoreman injured on a vessel can pursue damages from the vessel owner based on negligence, which includes time charterers like ENSIDESA. The Supreme Court case Scindia Steam Navigation Co. Ltd. v. De Los Santos clarified the duties owed by vessel owners to stevedores and longshoremen.
The 5th U.S. Circuit Court of Appeals in Hill v. Texaco outlines three key duties of shipowners concerning stevedores. First, prior to the stevedore's work, the shipowner must ensure that the ship's portions handed over are safe and must warn of any hidden dangers known or should be known to them. Second, once operations commence, the shipowner lacks a general duty to supervise or inspect the stevedore’s work unless obligated by custom, contract, or law, and can rely on the stevedore's expertise. Third, a duty to protect stevedore employees arises if the shipowner becomes aware of dangers during operations and observes the stevedore acting unreasonably in failing to mitigate those dangers. Knowledge of defects can be actual or deemed. The court in Lemon v. Bank Lines, Ltd. emphasized that while shipowners must address pre-existing dangerous conditions, they are not responsible for discovering new dangers that emerge during operations; that responsibility lies with the stevedore. Liability for negligent stowage can arise if a shipowner knows or should have known of an improper loading technique. The current case focuses on whether the stowage of cargo, specifically steel beams, created a dangerous condition that compromised the longshoremen's safety during offloading. The jury must determine if the stowage was indeed dangerous, making it unlikely that the longshoremen could safely offload the vessel.
Testimony at trial presented conflicting views on whether the stow was dangerous, leading the jury to make credibility determinations among witnesses. The Louisiana Supreme Court, in Rosell v. ESCO, established that appellate courts should defer to factfinders when their findings are based on witness credibility. However, if evidence significantly contradicts a witness's account or if the story is inherently implausible, appellate courts may find manifest error. In cases concerning dangerous stows, determining whether a condition is dangerous is typically a factual issue. Defendants in the current case contended that the stow was not unreasonably dangerous, paralleling arguments made in Woods v. Sammisa. The U.S. Fifth Circuit ruled that a stow could be deemed dangerous without a requirement for testimony to declare it "unreasonably" dangerous. Whether a stowage method is reasonable involves evaluating its risks compared to other methods and the diligence of the vessel owner in ensuring safety. The Woods case illustrated that overlapping cargo created a risk of injury and was deemed unsafe, supporting a finding of negligence due to the vessel owner's failure to provide a safe working environment for longshoremen. The standard of care owed by vessel owners is assessed in relation to the actions of a knowledgeable stevedore exercising reasonable care.
In Woods v. Sammisa, 873 F.2d at 851, evidence indicated that the plaintiff and other longshoremen were experienced stevedores who exercised reasonable care during the accident. Testimony revealed that the common practice of stowing steel beams in an 'H' configuration heightened the risk of cargo damage and injury to longshoremen. An alternative 'I' stow method could have significantly reduced these risks and was equally feasible. Although there was a concern about potential damage from cargo shifting with the 'I' method, one of the vessel owner's employees acknowledged that this method could actually decrease the risk of cargo damage.
The vessel owner, ARCASA, was found to be aware or should have been aware of the risks associated with the 'H' stow method, leading to the conclusion that ARCASA's actions likely contributed to the plaintiff's injuries. The trial court's determination of ARCASA's fault was not deemed clearly erroneous. Furthermore, the existence of an open and obvious danger did not absolve ARCASA from liability under the first Scindia duty.
The liability of ENSIDESA was also examined, with the court asserting that its duty under Scindia was comparable to that of ARCASA. The jury could reasonably conclude that a prudent time charterer would recognize the dangers of the stow method. ENSIDESA, as the loading stevedore, was found to have breached its duty of reasonable care by failing to load the vessel safely.
Regarding jury instructions, ENSIDESA and ARCASA contended that the trial court incorrectly submitted certain liability theories under Scindia due to a lack of supporting evidence, citing Woods v. Sammisa for the need for remand. However, they failed to properly object to these instructions as required by La. C.C.P. art. 1793(C), thus waiving their right to contest the jury instructions related to theories of liability concerning hidden dangers.
The evidence established that longshoremen were aware of the stow's condition, negating liability claims based on hidden dangers, contrasting with Woods v. Sammisa. ENSIDESA's motion for a directed verdict was properly denied; such motions are interlocutory and not appealable. There was substantial evidence supporting the jury's conclusions, justifying the trial court's decision. ENSIDESA and ARCASA's requests for judgment notwithstanding the verdict (J.N.O.V.) or a new trial were also denied, as the evidence did not overwhelmingly favor their position, and credibility issues are not within the trial court's purview for such motions. The court found no merit in the claims that the verdict was clearly contrary to the law or evidence. ENSIDESA's motion to continue the trial, filed shortly before the trial date to conduct an independent medical examination based on newly discovered evidence regarding the plaintiff's gunshot wounds, was denied. The plaintiff had previously undergone examinations revealing bullet fragments, which were known to ENSIDESA's medical expert, Dr. Laborde, although uncertainty existed about whether he inquired about these injuries during the examination. Dr. Culver's examination for the plaintiff's employer also confirmed the plaintiff's gunshot history.
Dr. Culver testified for ENSIDESA, revealing that the company either had or could have obtained knowledge of details regarding the plaintiff's gunshot wounds prior to trial. A continuance is permissible under Louisiana law if a party demonstrates they could not, despite due diligence, gather essential evidence. ENSIDESA failed to show such diligence, as it had access to relevant information long before the trial date. The court's discretion in granting or denying continuances is upheld unless there is clear abuse, and in this case, the trial court did not abuse its discretion in denying ENSIDESA's request for a continuance to examine the plaintiff regarding the gunshot wounds.
ENSIDESA contested the cancellation of two medical examinations scheduled shortly before the trial. The examinations were arranged on March 27, 1989, and the plaintiff learned of them on March 30, prompting him to request their cancellation. The court, without providing reasons, canceled the examinations likely due to their proximity to the trial date. Louisiana law allows trial courts to mandate physical examinations, and such decisions are within the court's discretion. The necessity of these examinations was questioned, as ENSIDESA had been aware of the possibility of a carpal tunnel syndrome claim for over 16 months and could have arranged for an earlier examination.
Additionally, the plaintiff was informed about ENSIDESA's intention to call Peter Duffy as a liability expert shortly before the trial, leading to an objection regarding the timing of introducing this expert testimony. The court's decisions on these matters, including the cancellation of medical examinations and the denial of continuance, were not deemed abuses of discretion.
The trial court excluded the testimony of witness Peter Duffy, leading ENSIDESA to seek writs of certiorari, which were denied by a divided panel. The plaintiff initially named ARCASA as a defendant in October 1984 and later added ENSIDESA in August 1985, with Duffy identified as an expert witness shortly before trial. The court found no abuse of discretion in excluding Duffy’s testimony, noting that the defendants presented similar evidence through other fact witnesses, minimizing any potential prejudice.
Defendants also challenged the trial court's denial of their motions to strike the testimony of plaintiff's liability expert, A.A. Ross, a marine surveyor with extensive experience. Ross, who inspected cargo on the M/V LORENA, was deemed qualified despite defendants' arguments that he lacked direct experience as a stevedore or safety expert. The court reaffirmed Ross's qualifications based on his background and expertise in marine surveying and stevedoring operations, stating that the trial court's discretion in qualifying expert witnesses is substantial and its decisions should not be overturned unless clearly erroneous.
ARCASA and ENSIDESA's claim that the trial court abused its discretion by denying Peter Duffy's testimony to counter Ross's testimony is found to lack merit. ENSIDESA contends that the trial court erred by permitting the plaintiff to cross-examine its liability witnesses regarding changes in the loading practices of steel beams after the accident. ENSIDESA's witnesses confirmed that in 1983, loading practices were modified at the request of U.S. and Canadian clients. According to La. Code of Evidence art. 407, evidence of subsequent remedial measures is inadmissible to prove negligence but may be admissible for other purposes, such as establishing ownership or credibility. ENSIDESA's witnesses noted the absence of customer complaints about the "H" stow method and acknowledged its ongoing use, but failed to address the routine loading on the "I" since 1983. The court determined that cross-examination aimed at questioning witness credibility does not violate La. C.E. art. 407.
Regarding the opinion testimony of lay witnesses, ENSIDESA's objection about the plaintiff's lay witnesses (fellow longshoremen) offering safety opinions was dismissed, as these opinions conformed to La. C.E. art. 701, being rationally based on their perceptions and helpful to understanding the case's facts. ENSIDESA also contested the exclusion of the plaintiff's criminal records for impeachment; however, this assignment was not elaborated upon. Under La. C.E. art. 609, only the conviction date and crime name are admissible if the trial court finds the probative value outweighs prejudicial effects, while arrest or indictment details are inadmissible.
Plaintiff's criminal records indicate convictions for first offense possession of marijuana and first offense carrying a concealed firearm, each punishable by up to six months in prison. There is, however, no evidence of any conviction related to stolen property in conjunction with a search warrant application and an inventory of recovered items from the plaintiff's residence. Consequently, the plaintiff's criminal history was deemed inadmissible under Louisiana Code of Evidence Article 609.
ENSIDESA contends that the trial court improperly denied its motion for a new trial due to jury misconduct, as outlined in Louisiana Code of Civil Procedure Article 1972(3), which mandates a new trial if the jury has misbehaved to the extent that impartial justice was not served. ENSIDESA acquired affidavits from three jurors asserting that one juror pressured others for a verdict based on non-evidentiary grounds, suggesting the plaintiff deserved to win as an individual against corporations, and making remarks that invoked racial bias. One juror indicated that after nearly ten hours of deliberation, the jury capitulated to the urging of this juror, resulting in a significantly increased verdict.
However, Louisiana Code of Evidence Article 606(B) prohibits jurors from testifying about statements or matters occurring during deliberations, except regarding outside influences. Thus, the jurors' affidavits are inadmissible for challenging the verdict's validity. The prior law allowed such affidavits to prove juror untruthfulness during voir dire, but the current exception does not apply if the statement was a general assertion of impartiality. ENSIDESA's argument focuses solely on the alleged general statement of the juror’s impartiality.
Affidavits submitted by ENSIDESA regarding jury misconduct are not admissible, and no additional allegations of such misconduct were presented. The trial court's decision to deny ENSIDESA's motion for a new trial on these grounds is upheld, as there is no evidence of an abuse of discretion. ENSIDESA also contends that the trial court erred by not including an interrogatory about the fault of the plaintiff's employer, Cooper Stevedoring Company. However, since the plaintiff was receiving benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), which does not permit apportionment of fault to an employer, this claim is unsupported. Relevant case law confirms that the negligence of an employer should not be submitted to the jury in LHWCA actions. Furthermore, the trial court properly instructed the jury regarding Cooper's interest, and the testimonies of Cooper's employees were deemed credible despite Cooper's financial interest in the case. Evidence of Cooper's claim for reimbursement was excluded to prevent undue prejudice against the plaintiff. Lastly, ENSIDESA argues that the trial court should have granted a new trial due to a breach of the "Golden Rule" during closing arguments, which encourages jurors to empathize with a party's situation regarding damages.
The "Golden Rule" is applicable only in cases concerning damages. The record lacks a transcript of closing arguments, but it shows that ENSIDESA's counsel objected to opposing counsel's remarks during closing, although he could not recall specifics at the time. ENSIDESA's appeal brief includes partial quotes from opposing counsel, which do not urge jurors to empathize with the plaintiff's medical situation and do not incite emotional verdicts. The trial court instructed the jury that counsel's statements were not evidence, rendering this assignment of error unmeritorious.
Regarding medical evidence, ENSIDESA contends the trial court erred by not allowing Dr. Bogran to testify or permitting his report for cross-examination. However, the record does not confirm that the court outright prohibited Dr. Bogran from testifying. During the trial, the court indicated it would not permit questions about Dr. Bogran's report unless he was called as a witness, which was not the case. The court allowed extensive examination of other physicians, but deemed Dr. Bogran's report hearsay and inadmissible without his testimony, thus finding no error in the trial court's decisions.
ENSIDESA also argued that the court wrongly excluded a petition related to a 1987 accident involving the plaintiff. This petition sought damages for personal injuries and property damage. During cross-examination, the plaintiff stated he was only pursuing property damage recovery and was unaware of any personal injury claims. ENSIDESA attempted to introduce the petition alongside Dr. Bogran’s report.
The trial court's decision to disallow a petition was upheld, as its relevance was deemed substantially outweighed by potential prejudice against the plaintiff, in accordance with La. C.E. art. 403. ENSIDESA argued that the trial court erred by not striking the testimony of Dr. Philip Jeffress, the plaintiff's economist, claiming he made several errors in his calculations of wage loss, including double counting benefits, ignoring economic downturns, using an unrealistically low discount rate, and relying on an improper work life expectancy. However, the trial court has broad discretion regarding the competency of expert witnesses, and Dr. Jeffress was extensively cross-examined, making the decision not to strike his testimony defensible.
Both ARCASA and ENSIDESA contested the jury's damage award, specifically the trial court's failure to grant a remittitur under La. C.C.P. art. 1814. The court found sufficient facts to amend the verdict regarding damages, rendering the remittitur issue moot. The jury awarded the plaintiff $1,700,000, broken down into various categories including future medical expenses, past and future pain and suffering, and loss of earnings.
Causation was addressed, with the jury concluding that ARCASA and ENSIDESA were at fault for the plaintiff's damages. This determination, being a factual issue, is not subject to disturbance unless the evidence does not support it or it is clearly erroneous. The plaintiff, claiming both psychic and physical injuries, was treated by Dr. John Watermeier, who took over after the plaintiff's condition did not improve following prior treatments. The plaintiff reported significant pain, particularly in his back and legs.
Objective findings indicated muscle spasm and limited range of motion in the plaintiff's back. Dr. Watermeier attributed the plaintiff's pain primarily to a symptomatic or bulging disc in the lower back and administered a chemopapain injection in April 1983, which provided temporary relief. By June 1983, the plaintiff was limping and exhibiting severe straight leg raising signs, leading Dr. Watermeier to perform a lumbar laminectomy on June 24, 1983, where a bulging disc irritating a nerve was discovered. Post-surgery, the plaintiff showed some improvement but continued to report back pain, prompting a spinal fusion in 1985. Dr. Watermeier concluded that the plaintiff's low back pain stemmed from a November 1982 accident aboard the M/V LORENA, dismissing earlier injuries from 1980 as the cause of his post-1982 issues. He noted that the plaintiff had not experienced leg pain related to the 1980 treatment, but did after the 1982 accident. Although aware of degenerative changes in the spine dating back to 1968, Dr. Watermeier maintained these did not contribute to the plaintiff's subsequent problems, nor did a cervical spine contusion from a 1986 gunshot wound. After a September 1987 automobile accident, Dr. Watermeier observed the same complaints as before. He had noted wrist and forearm pain in 1983 but did not express concern until late 1987, initially diagnosing carpal tunnel syndrome without a definitive conclusion. From early 1984, he provided monthly or bi-monthly Marcaine injections and prescribed pain medication, alongside multiple hospitalizations for morphine epidurals. Dr. Watermeier believed the plaintiff would experience chronic pain and considered him totally disabled from 1983 until July 1986, after which he deemed the plaintiff capable of light activity but not longshore work. By May 1987, he found the plaintiff totally disabled again, and by trial, he indicated that the plaintiff might struggle with even light duty work but could potentially be trained for sedentary employment.
Dr. Robert Newman, a psychiatrist, provided testimony for the plaintiff, detailing his treatment of the plaintiff from April to September 1988 and again from January to April 1989. He diagnosed the plaintiff with an adjustment disorder with depression, a dependent personality, and a psychogenic pain disorder. Dr. Newman opined that the dependent personality did not stem from a November 1982 accident but that the plaintiff's depression was linked to his inability to work as a longshoreman due to a back injury, leading to diminished self-esteem tied to his labor identity. He prescribed antidepressant medication, which the plaintiff continued to take, and anticipated the need for ongoing treatment.
Dr. Newman referenced a 1980 report indicating the plaintiff had experienced depression following a prior work-related injury, questioning the qualifications of an orthopedist to assess mental health issues. He acknowledged that the plaintiff's inability to work could contribute to his depression. Dr. Newman believed the plaintiff's arm pain was psychogenic but was uncertain about the psychological nature of his low back pain, noting a lack of objective symptoms and dismissing the notion of malingering despite the plaintiff meeting some criteria.
He felt that the plaintiff would not recover from the psychogenic pain disorder and that returning to work would not significantly aid recovery unless it was similar to his previous labor-intensive role, although he acknowledged that any employment could be beneficial.
In contrast, Dr. James Laborde, an orthopedic expert for the defendants, evaluated the plaintiff in December 1987. He diagnosed nonorganic or psychogenic pain but also identified degenerative changes and arthritis in the plaintiff's spine from previous x-rays. He found no evidence of carpal tunnel syndrome and believed the plaintiff could perform light-duty work. On cross-examination, Dr. Laborde conceded that standard x-rays do not reveal nerve or disc issues and that it remains unclear if such conditions cause pain.
Dr. Laborde testified that lumbar disc bulging is common and increases with age due to degeneration, and there is no objective method to link a herniated disc directly to a specific injury versus normal degeneration. Dr. Rennie Culver, a psychiatrist for the defendants, evaluated the plaintiff only once on September 14, 1988, and noted a history focused on a November 1982 accident and 1986 gunshot wounds. He diagnosed the plaintiff with depression, a psychogenic or somatoform pain disorder, and a dependent personality, echoing Dr. Newman’s diagnosis. Dr. Culver did not consider malingering in his assessment, as it conflicted with the somatoform diagnosis, which assumes genuine pain symptoms. He opined that the somatoform pain disorder likely developed post-1982 accident but could not definitively date its onset, attributing it to the plaintiff's depression. Dr. Culver acknowledged that the 1982 injury contributed to the plaintiff's depression, indicating a significant decline in functioning afterward. The defense challenged the plaintiff's credibility and the reliability of medical expert opinions based on the plaintiff's self-reported history. The jury was tasked with evaluating the plaintiff's credibility concerning causation and damages. The Louisiana Supreme Court emphasizes that appellate review of jury factual determinations hinges on witness credibility, affording deference to the jury's findings unless contradicted by objective evidence or internally inconsistent stories. While the plaintiff had minor pre-1982 injuries, evidence indicated that the current condition stemmed from the 1982 accident.
A tortfeasor is liable for damages resulting from their tortious actions, even if the plaintiff had pre-existing conditions that exacerbated the injuries. In this case, despite evidence of prior gunshot wounds and an automobile accident, it was determined that these incidents did not cause the plaintiff's physical or psychogenic issues. The conflicting testimony from medical experts did not negate the finding that the negligence of ARCASA and ENSIDESA was the cause of the plaintiff's damages.
The focus of the case is the determination of damages, particularly future medical expenses, which must be established with reasonable certainty but are often speculative. Evidence presented included potential costs for surgical procedures, morphine epidurals, Marcaine injections, regular doctor visits, and pain medication. Specifically, estimates included $20,000 for surgery, $22 monthly for Marcaine injections, and $12,000 annually for morphine epidurals. The treating orthopedist, Dr. Watermeier, anticipated ongoing treatment needs without providing a definitive life expectancy for the plaintiff. Additionally, another treatment suggested was relaxation therapy at $82.50 per half hour, presumably needed for the duration of the plaintiff's life.
Plaintiff's projected future medical expenses include monthly visits to Dr. Watermeier ($34/month), Percodans ($15/month), Marcaine injections ($22/month), bi-weekly therapy with Dr. Newman ($82.50/session), and morphine epidurals ($12,000/year), totaling $14,997/year. With a life expectancy estimated at 70 years and the plaintiff being 53 at trial, future medical expenses over 17 years are calculated at $254,949, plus an additional $20,000 for future surgery, leading to a total of $274,949. The jury awarded $300,000, which will be adjusted to $274,949.
For past loss of earnings, the jury granted $175,000. Dr. Philip Jeffress, an expert economist, calculated total past lost wages at $203,746, comprising $141,365 in after-tax wage losses and $62,381 in non-wage benefits, based on the plaintiff’s earnings from 1980 to 1982. His assessment relied on a yearly income of $25,585, a work-life expectancy of 10.1 years, and did not factor in potential pay raises or fluctuations in port activity. Jeffress's figures assumed the plaintiff's inability to work, stating that any earnings from work would reduce his loss calculations. The lost fringe benefits were derived from collective bargaining agreements, but there was an acknowledgment that vacation and holiday pay might have been included in the W-2 forms, necessitating a revision of the calculations which was not performed. The defense presented evidence that holiday and vacation pay were counted as earnings, potentially affecting the accuracy of the loss assessments.
Niemand testified that vacation and holiday pay are included as earnings on a longshoreman's W-2 form, which was reflected in the plaintiff's 1982 W-2. He stated that a longshoreman like the plaintiff, who had worked since 1968, would receive contributions to welfare and pension plans for up to 400 weeks following a November 1982 injury, as long as they were receiving workers' compensation. Coverage under the welfare plan would continue as if the plaintiff were working full-time, excluding medical expenses related to the injury, and pension benefits would accrue similarly.
Niemand calculated the plaintiff's potential earnings post-accident, estimating $12,000 for 1986-87 and $13,000 for 1987-88, which were lower than calculations by Dr. Jeffress. Dr. Kenneth Boudreaux, for the defendants, estimated past lost earnings at $53,373.80. The jury could reasonably accept Dr. Jeffress's figure of $141,365.00 for past lost wages, but Dr. Jeffress incorrectly included holiday and vacation pay in his calculations for fringe benefits. Consequently, the jury's award of lost benefits was erroneous due to lack of clarity on the portion representing holiday and vacation pay, leading to a reduction of $62,381.00 from the judgment.
For future earnings, the jury awarded $460,000.00, but the plaintiff must prove future lost wages with reasonable certainty. Dr. Jeffress estimated future lost earnings at $281,475.00, comprising $189,732.00 in lost wages and $91,743.00 in lost fringe benefits, with no evidence supporting a higher award. Thus, any jury award exceeding Dr. Jeffress's calculations is deemed unsupported by evidence.
Dr. Jeffress' calculation of fringe benefits was flawed, as it did not account for holiday and vacation pay included in the plaintiff's W-2 form. Defendants' expert, Dr. Boudreaux, assessed the plaintiff's future lost earnings at $4,748.00, basing his estimate on a reduced work life expectancy and a wage of $4.10 per hour, informed by vocational rehabilitation counselor Jennifer Palmer's testimony regarding potential job qualifications for the plaintiff. The jury could have reasonably favored Dr. Jeffress' assessment of $189,732.00 for future lost wages but should not have awarded $91,743.00 for future lost fringe benefits due to insufficient evidence and the incorrect original calculations by Dr. Jeffress. Consequently, the judgment for future loss of earnings will be amended to $189,732.00.
Regarding general damages, the jury awarded $325,000.00 for past pain and suffering and $450,000.00 for future pain and suffering. The defendants argue these amounts are excessive. An appellate court can only overturn a trial court's damage award if there is clear evidence of an abuse of discretion. The assessment of damages must consider the specific circumstances of the case rather than past awards. Following a serious accident that necessitated a lumbar laminectomy and spinal fusion, the plaintiff has endured significant, ongoing pain, requiring medication and various treatments, and has been deemed unable to return to work as a longshoreman. Testimonies from Dr. Watermeir and Dr. Newman emphasized the physical and psychological impacts on the plaintiff, who had worked as a longshoreman from 1968 until his injury in 1982 and identified closely with his ability to provide for his family.
Post-accident, the individual experienced marital strife and persistent pain despite undergoing two surgeries. The court determined that the original awards for both past and future general damages constituted an abuse of discretion, reducing these awards to $250,000, which is deemed the maximum reasonable amount within jury discretion for similar injuries.
In the indemnification section, the cross-claims of ARCASA, the vessel owner, and ENSIDESA, the vessel charterer, were severed and tried without a jury. The trial court dismissed both claims, with ENSIDESA appealing the dismissal of its cross-claim while ARCASA appealed the dismissal of its own. The court upheld the dismissal of ENSIDESA’s cross-claim, rejecting its argument that ARCASA had a duty to prevent an unsafe discharge, as the evidence indicated the accident stemmed from the loading and stowing of cargo, for which the jury apportioned 85% fault to ENSIDESA and 15% to ARCASA.
ARCASA's cross-claim for indemnity was based on the GENCON charter party, which specifies in Clause 5(b) that loading and discharging costs are the responsibility of the charterers, relieving ARCASA of liability for injuries incurred during these operations. ENSIDESA argued against this liability relief by referencing the case Woods v. Sammisa Co. Ltd., but the court distinguished this case due to significant differences in the contractual language concerning liability for loading and unloading injuries.
The agreement stipulates that ARCASA is fully exempt from "risk, liability, and expense," unlike the New York agreement referenced in Woods, which only addresses expenses. This distinction supports ARCASA's claim for indemnity from ENSIDESA for 15% of the jury-imposed liability related to plaintiff's injuries. Consequently, the trial court's dismissal of ARCASA's cross-claim against ENSIDESA is reversed, mandating ENSIDESA to indemnify ARCASA for its share of the plaintiff's damages.
The amended judgment awards damages totaling $1,106,046, broken down as follows: $274,949 for future medical expenses; $250,000 for past physical and mental pain and suffering; $250,000 for future physical and mental pain and suffering; $141,365 for past loss of earnings; and $189,732 for future loss of earnings. The judgment is affirmed as amended, with the trial court's decision concerning other aspects upheld. Additional notes indicate ongoing discussions regarding the trial court's qualification of expert witnesses and issues related to jury misconduct, as well as clarifications on the applicability of certain statutes. The matter of past medical expenses was not presented to the jury and is not part of the appeal.
