Barbara Jean Johnson, Cross-Appellant v. Offshore Express, Inc., Cross-Appellee
Docket: 86-3302
Court: Court of Appeals for the Fifth Circuit; July 6, 1988; Federal Appellate Court
Offshore Express, Inc. appeals a judgment from the United States District Court for the Eastern District of Louisiana which ruled in favor of Barbara Johnson, a seaman injured while employed by Offshore. The court found Offshore negligent under the Jones Act and deemed the M/V CHAMPION EXPRESS unseaworthy, awarding Johnson damages for lost earnings, pain and suffering, disfigurement, and total permanent disability. Johnson cross-appeals, claiming the awarded damages were insufficient. Offshore also contests the denial of its motion for a new trial based on newly discovered evidence and allegations of fraud. The appellate court affirms the district court's decision.
In November 1982, Johnson, despite her short stature and limited experience, was hired as an able-bodied seaman and cook. She had over 150 days of sea time and a U.S. Coast Guard license. On April 22, 1983, she was assigned to the M/V CHAMPION EXPRESS, with an understanding she would only perform duties inside the cabin due to her height and inexperience. On April 27, 1983, while the vessel was moored to a drilling platform and faced with rough seas, Johnson was ordered to make up the bunks. After initially refusing, she complied and fell approximately six feet onto the deck while attempting to prepare an upper bunk, sustaining significant injuries. She claimed her position while making the bed was necessary due to her inability to reach the bunk from the deck or other means.
An unwitnessed accident occurred on a vessel, where the cook heard a disturbance and found Johnson on the floor in pain. Johnson was taken to Abbeville General Hospital, where she was treated for a large bruise on her lower back and discharged the next day. Ten days later, she sought further medical attention from Dr. John Moore in Galveston, complaining of severe headaches, back pain, and urinary issues, with a visible bruise still present. After moving to New Orleans, Johnson began treatment with orthopedic surgeon Dr. Alain F. Cracco and neurosurgeon Dr. R.C. Llewellyn. Dr. Cracco referred her to urologist Dr. Satish Karnik due to ongoing urinary problems. Johnson underwent back surgery to relieve nerve root compression caused by trauma from the fall and remained hospitalized until September 1983, when she was transferred for intensive rehabilitation.
Despite initial recovery, Johnson's condition deteriorated, showing symptoms like hip flexion, inward rotation of her left leg and foot, and spinal curvature. By December 5, 1983, during an examination by Dr. Richard Levy, Johnson walked with a severe tilt and complained of significant pain and urinary issues. Dr. Levy diagnosed her with arachnoiditis, likely a complication of her earlier surgery. Dr. Cracco later decided to perform exploratory surgery to remove an arachnoid cyst formed from the initial operation's complications. After this second surgery, Johnson continued therapy and was hospitalized until late May, with a brief admission for gallbladder surgery in April.
Discharged in June 1984, she was transferred to the Touro Pain Center, where Dr. Gary Glynn found no major neurological dysfunction, but Johnson still displayed a tilted hip and inward rotation of her left leg, which she claimed alleviated her pain. Dr. Richard Morse, a psychiatrist and neurologist, suggested that some of Johnson's pain might be influenced by emotional factors and noted her lack of openness to counseling and motivation to improve, while still acknowledging her reported pain.
Dr. Morse determined that Johnson was not responding to treatment at the Touro Pain Center, leading to her discharge to home care after approximately one month. Johnson subsequently rented an apartment in New Orleans, where her teenage son, Michael, assisted in her care. Throughout this period, she continued to visit various doctors and physical therapists while remaining on pain medication and was able to walk with crutches by year’s end. On August 31, 1985, Dr. Neil Baum confirmed a diagnosis of urinary stress incontinence, although he did not identify a neurogenic bladder. By November 26, 1985, two and a half years post-injury, Johnson reported ongoing severe pain in her lower back, hip, and leg, along with numbness and urinary issues.
On October 25, 1983, Johnson filed a lawsuit against Offshore in the U.S. District Court for the Eastern District of Louisiana, claiming negligence under the Jones Act and unseaworthiness under maritime law. On October 16, 1984, Offshore countered with a third-party malpractice suit against her treating physicians, Drs. Cracco and Llewellyn, seeking indemnity for maintenance and cure payments and damages due to alleged negligence. The trial commenced on January 6, 1986, and concluded after eleven days, with the court ruling in favor of Johnson on her claims against Offshore, assigning 80% fault to Offshore and 20% to Johnson. The court ruled against Offshore’s malpractice claims against the doctors, awarding Johnson a total of $370,000 for mental suffering, $185,000 for disfigurement, and $123,708 for future lost wages, in addition to $37,180 for past lost wages.
Johnson filed post-trial motions challenging the court’s findings, particularly regarding her urinary issues and the calculation of lost wages. The district court amended the judgment on April 8, 1986, to grant Offshore a $10,056 credit for prior payments but did not provide further relief to Johnson. Offshore appealed the findings of negligence, unseaworthiness, and the damages awarded. Six months after the trial, on July 28, 1986, Johnson and her son were arrested in connection with a conspiracy to overthrow the Suriname government. Johnson was later indicted and sentenced to one year in federal prison for conspiracy and Neutrality Act violations on November 5, 1986.
On February 23, 1987, Offshore filed a motion for a new trial under Fed. R. Civ. P. 60(b), citing "newly discovered evidence" regarding Johnson's post-trial activities (60(b)(2)) and claims of fraud and misconduct by Johnson during the prior trial (60(b)(3)). Offshore's motion was bolstered by affidavits from two U.S. Customs agents who had investigated the conspiracy. They reported observing Johnson's improved physical condition and her minimization of her disabilities, contrasting with her deteriorated state following her arrest, when she was aware of potential camera coverage. The district court denied the motion at a hearing on April 8, 1987, leading Offshore to appeal, consolidating this appeal with other rulings regarding Offshore's negligence and the unseaworthiness of the M/V CHAMPION EXPRESS.
The court found that questions of negligence and causation in admiralty law are factual and that findings of fact are binding unless clearly erroneous. It established that even slight negligence can support a Jones Act liability claim, with a plaintiff's burden for causation being minimal. The district court determined Offshore was negligent in requiring Barbara Johnson, who was inexperienced and short-statured, to make up upper bunks in rough seas without assistance. Johnson fell from a bunk that was 4'5" above the deck due to the vessel's lurch. Although she possessed a seaman's license, her experience at sea was limited, primarily as a cook, and she lacked specific experience in making up upper bunks. The bunk was appropriately designed for sleeping, equipped with a small step and hand railing, but these features were inadequate for safely making up the bunk.
Alvin Marks, a safety expert, testified that Johnson could not physically reach across the upper berth mattress from either a standing position on a folding step or the lower bunk sideboard due to her stature, supported by diagrams and photographs. Offshore's witnesses did not argue that Johnson could have made the upper bunk safely from those positions, instead claiming there were alternative methods available, although there was no evidence that Johnson was informed of these methods. The mate who assigned the task did not consider Johnson's size or how she would perform the task. Testimony indicated that making up the upper bunk was particularly challenging in rough seas, and it was suggested the mate should have assigned her an assistant.
The testimony regarding whether Johnson was offered assistance was conflicting; however, it was clear that the mate ordered her to make the bunks without assistance. Engineer Dennis Olson testified that Johnson reported feeling dizzy before her fall and he offered help, which she declined. Johnson, however, denied experiencing dizziness and claimed she was not offered assistance.
Offshore contested the finding that the M/V CHAMPION EXPRESS lurched on the day of the incident, but evidence showed the seas were rough and that such a shift could have occurred, potentially unnoticed by others. The district court's conclusion that a lurch happened was not undermined by Johnson being the only one to perceive it.
Regarding seaworthiness, a vessel must be suitable for its intended use, and the owner's duty to provide a seaworthy ship is absolute and independent of the duty to exercise reasonable care under the Jones Act. Liability for unseaworthiness does not depend on fault or negligence.
An unseaworthiness claim requires a more stringent causation standard than a Jones Act negligence claim. To succeed in an unseaworthiness claim, a plaintiff must demonstrate that the unseaworthy condition significantly contributed to the injury and that the injury was either a direct result or a likely consequence of the unseaworthiness. Conditions that qualify as a cause under the Jones Act may not meet the higher requirements for unseaworthiness. It is emphasized that Jones Act negligence and unseaworthiness are distinct legal theories with different standards.
In this case, the district court found that the M/V CHAMPION EXPRESS was unseaworthy, which contributed to Johnson's injury. The vessel lacked appropriate equipment for a person of Johnson's height to safely make up an upper bunk in rough seas and did not provide adequate manpower. Evidence showed that the equipment available, including a small step and an overhead handrail, was inadequate and unsafe for the task. Testimony indicated that a ladder and an assistant would have allowed Johnson to perform her duties safely, but without these, she had to risk crawling up and kneeling on the edge of the bunk. Unseaworthiness can arise from unsafe working conditions, such as inadequate equipment. Furthermore, expert testimony confirmed that ladders or platforms for making upper bunks were not standard shipboard equipment, and customary practices do not suffice to establish seaworthiness. For someone of Johnson's height, necessary equipment to perform her duties safely was absent, leading to her injury.
The presence of a potentially safer method for Johnson to make up the upper bunk does not negate the claim of unseaworthiness. Although testimony suggested this method might be safer, there was no evidence indicating that Johnson was aware of it or that it was feasible. Consequently, the district court's finding of unseaworthiness is upheld as not clearly erroneous.
Johnson was found to be 20% contributorily negligent for her accident, primarily due to her failure to seek assistance and her decision to make up the bunk despite knowing the risks posed by the vessel's movement in rough seas. Under the Jones Act, contributory negligence does not bar recovery but only reduces damages. The seaman's duty to ensure safety is lessened by the nature of maritime employment, placing the primary responsibility for safety on the vessel owner.
The district court's fault allocation of 80% to the vessel and 20% to Johnson is supported by the evidence, and claims by Offshore that Johnson's alleged refusal of assistance should make her solely at fault were rejected. Johnson contested the assertion that assistance was offered.
The assessment of damages by the trial judge is also a factual finding reviewed under the clearly erroneous standard. Damages can only be overturned if deemed grossly unreasonable, and comparisons with other cases are not used to determine excessiveness. Each case is evaluated based on its unique facts.
The district court determined Barbara Johnson to be totally and permanently disabled due to significant back and leg impairments, primarily caused by arachnoiditis from her initial back surgery. The court concluded she would remain unable to engage in any gainful employment for the rest of her life, as evidenced by her inability to sit or stand for extended periods and her reliance on crutches for mobility. Supporting testimony from medical experts and a physical therapist confirmed her severe condition, including congenital spina bifida aggravated by trauma and a vertical displacement between her hips.
While Offshore did not contest the actual lost earnings damages or the calculation methods, Johnson cross-appealed the court's decision to reduce her earnings award by 25% based on the assumption that she worked only nine months a year. Johnson had previously testified to this work pattern, and the court found the assumption reasonable.
Additionally, the court awarded Johnson $370,000 for past and future pain and suffering and $185,000 for disfigurement and physical disability. Offshore challenged these amounts as excessive and inadequately supported by medical testimony. However, the court maintained that the awards were justified due to Johnson's long-term reliance on crutches and the corroborating medical evidence of her conditions, concluding that the amounts, while substantial, were not excessive or clearly erroneous.
Damages for pain and suffering rely significantly on the trial court's observations and subjective assessments, as established in Hernandez and Hyde case law. The district court's award for Barbara Johnson's severe and permanent pain is supported by medical testimony, with no doctors disputing her experience of serious pain or the likelihood of ongoing suffering. Johnson's claim for damages related to urinary problems was dismissed by the district court, which found no connection to her accident. Testimony from Dr. Cracco and Dr. Baum indicated that her urinary stress incontinence predated the accident and was unrelated to it, while Dr. Karnik suggested a possible aggravation. The court favored Dr. Baum's testimony over Dr. Karnik's, leading to the conclusion that the district court's findings regarding Johnson's urinary issues were not erroneous.
Regarding the motion for a new trial, it is noted that such motions are within the trial court's discretion and can only be reversed for clear abuse of that discretion, as highlighted in various case precedents.
Offshore filed a motion for a new trial under Rule 60(b) citing two grounds. The first ground, "newly discovered evidence" under Rule 60(b)(2), involved details about Johnson's alleged conspiracy involvement that surfaced six months post-trial. However, such evidence must pertain to facts existing at the time of the original trial, as established in several case precedents. Offshore's evidence did not satisfy this requirement.
The second ground was based on fraud, misrepresentation, and misconduct under Rule 60(b)(3). Offshore alleged that Barbara Johnson exaggerated her physical limitations during her personal injury trial, claiming her post-trial behavior contradicted her testimony. For a fraud claim under this rule, the moving party must provide clear and convincing evidence that the alleged misconduct prevented a fair presentation of their case. The court emphasized that Rule 60(b)(3) addresses judgments obtained unfairly, rather than those that are factually incorrect. While the district court has discretion in granting such motions, it did not abuse its discretion in this instance, as no prior cases had successfully granted a new trial based on a plaintiff's alleged fraudulent testimony about injuries in personal injury cases. The court refrained from categorically dismissing the possibility of such a motion in similar circumstances but upheld the district court's decision not to grant it in this case.
Offshore's allegations did not demonstrate an abuse of discretion by the district court in denying its motion for a new trial based on claims of fraud. During the hearing, the district court clarified that damages awarded in the prior trial were not reliant on Johnson's testimony but on medical evidence, and expressed skepticism about Johnson's credibility, noting the lack of awarded damages for certain claimed injuries. The court observed a videotape showing Johnson walking without any visible issues, indicating her potential exaggeration of ailments. Testifying doctors also believed Johnson may have overstated her disabilities.
Additionally, the evidence of fraud presented by Offshore was deemed insufficiently clear and convincing. Depositions of government agents contradicted their earlier affidavits, revealing uncertainty regarding Johnson's capabilities. Much of the alleged fraud stemmed from Johnson's statements made under the incentive of financial gain, rather than objective evidence of her actual abilities. The court concluded that any potential misrepresentation by Johnson did not affect the objective medical diagnoses, which were based on physical evidence rather than her assertions.
The court ruled that improvements in Johnson's condition post-trial do not warrant a new trial, as judgments are final regarding the condition at the time of trial unless misconduct is shown. Ultimately, the district court's findings of Jones Act negligence against Offshore Express, the unseaworthiness of the M/V CHAMPION EXPRESS, and the award of damages to Barbara Johnson were affirmed, with no abuse of discretion found in denying the motion for a new trial.
Dr. Karnik did not determine the causes of Johnson's medical issues but recommended surgery for her urinary stress incontinence. Arachnoiditis, defined as inflammation of the nerve roots in the lumbar region resulting in permanent scarring and severe pain, was highlighted as a significant condition impacting Johnson. Damages were noted to be substantial, with a 20% reduction for Johnson's contributory negligence. Testimony indicated that Johnson's safety would have been improved had she climbed into the upper bunk differently. Bobby Roberts, a vocational rehabilitation expert, assessed Johnson and concluded that she was incapable of holding any job due to her physical limitations, even with a college degree, suggesting she could only expect part-time work as a handicapped individual.
The court observed that Johnson’s posture, which might have been an attempt to relieve pain, was not consistent and lacked objective medical backing for its inclusion in her disability assessment. In the case of Atchinson, Topeka, and Sante Fe Railroad Co. v. Barrett, the court upheld the denial of a new trial regarding a plaintiff's alleged faked injuries, indicating potential skepticism about such claims.
Surveillance footage presented at trial showed Johnson engaging in various activities, such as driving and attending classes, which the court acknowledged did not contradict the awarded damages since these actions did not involve extensive sitting or standing and did not negate her pain. The court's disability ruling was significantly based on Johnson's pain from arachnoiditis and her inability to remain seated or standing for extended durations. Lastly, depositions recorded Johnson's pre-arrest activities, revealing she walked with assistance and exhibited a limp. It was noted that her visible decline in physical condition became apparent only after her arrest, suggesting that the conditions of her transport may have exacerbated her issues.
