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Maritime quantum study.

This study includes all reported Louisiana court decisions involving maritime personal injury awards from January 1, 2006 to January 1, 2007. Also included are reported cases from the United States Fifth Circuit Court of Appeals (Louisiana cases), the United States District Court for the Eastern District of Louisiana, and Louisiana State District Courts. Case citations are given for each case; however, denials of certiorari are not indicated.

The usefulness and limitations of this Quantum Study are readily apparent. However, it is not a substitute for a careful reading of a particular opinion. Moreover, it should not create the impression that damage awards are susceptible of precise estimation. Triers of fact in Louisiana are vested with much discretion when fashioning awards; thus, a seemingly disproportionate judgment will only be reversed when that discretion has been abused.

Users should always remember that most cases are settled and never approach the appellate level. Therefore, most cases will never be reported in this or other studies.

BACK

Citation: Jauch v. Nautical Serv., Inc., 05-30466 (5th Cir. Nov. 9, 2006); 470 F.3d 207.

Original Jurisdiction: Eastern District of Louisiana.

Trier of Fact: Judge.

Circumstances: The plaintiff was injured while assisting the boat's captain and two other crew members to move a johnboat from one deck to another. Specifically, he was injured when the lines attached to the johnboat slipped while going over the side of the 2nd deck. He was pulled forward against the side of the ship by the weight of the johnboat. The plaintiff saw an orthopedist, which diagnosed his injury as a lumbosacral strain, and treated it accordingly. He was discharged from the orthopedist's case upon having reached maximum medical improvement. Despite this, the plaintiff continued to have pain in his lower back. He eventually sought care from a series of doctors and ultimately underwent lumbar disc fusion surgery. The plaintiff sued for maintenance and cure under general maritime law and for damages under the Jones Act.

Plaintiffs Occupation: Deckhand.

Injury: Lumbosacral strain; eventual disc fusion surgery.

Permanent Residuals: Unknown.

Quantum Award: The district court determined that the plaintiff and defendant were equally at fault. Despite this, it awarded the plaintiff $61,828.84 for past medical expenses; $10,000 for future medical expenses; $44,619.24 for past lost wages; $16,094.08 in future lost wages; and $250,000 in general damages. However, the district court denied the plaintiffs claim for maintenance and cure because he failed to notify the defendant of his prior back injuries. The appellate court affirmed the denial of maintenance of cure and the apportionment of fault, but vacated the award of past medical expenses and the denial of prejudgment interest, remanding those claims to the district court for further consideration.

BACK

Citation: Johnson v. Cenac Towing Inc., 06-0914 (E.D. La. Dec. 27, 2006); 468 F. Supp. 2d 815.

Original Jurisdiction: Eastern District of Louisiana.

Trier of Fact: Judge.

Circumstances: The plaintiff was injured while he and two other crew members were connecting a crossover hose between two barges. While the plaintiffs co-worker was moving one end of the hose, he tripped and dropped part of the hose, which caused the plaintiff to bear an increased amount of weight from the hose. The plaintiff immediately complained of pain and burning in his back and sought care from several doctors prior to trial, including a urologist, a neurologist, and his primary care physician. The plaintiff underwent several x-rays and MRIs, which determined that surgery was not necessary.

Plaintiffs Occupation: Tankerman.

Injury: Contusion of the abdominal wall, lumbago (lower back pain), flank pain, right leg numbness, thoracic/lumbosacral neuritis/radiculitis and urinary incontinence.

Permanent Residuals: Permanent partial disability rating of zero to three percent for plaintiffs back.

Quantum Award: $30,001.96 for past lost wages; $30,000 for past pain and suffering; $30,000 for future pain and suffering; $38,095.80 for past medical expenses; and $2,129 for past lost meals. It should be noted that the plaintiff had previously suffered similar work-related injuries. The court discounted these injuries from the damage calculations, as well as neck injuries from a car accident that the plaintiff was involved in shortly before the commencement of this litigation. The court determined that the plaintiff was not entitled to maintenance and cure benefits because he willfully concealed material medical facts in his pre-hiring medical examination with the defendant.

BURN INJURIES OVER ENTIRE BODY

Citation: Dahiya v. Talmidge Int'l Ltd., 2005-0514 (La. App. 4 Cir. 05/26/06); 931 So. 2d 1163.

Original Jurisdiction: Plaquemines Parish (remanded from the Eastern District of Louisiana).

Trier of Fact: Jury.

Circumstances: The plaintiff suffered burn injuries while training to operate an incinerator in the engine room of a vessel owned by the defendant.

Plaintiffs Occupation: Engine room cadet.

Injury: Burn injuries over entire body.

Permanent Residuals: Unknown.

Quantum Award: The district court granted the plaintiff damages in the amount of $579,988. The appellate court reversed, holding that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards superseded state law; thus, the proceeding would have to be stayed pending arbitration.

SURVIVAL ACTION, WRONGFUL DEATH ACTION

Citation: Palermo v. Port of New Orleans, 2004-1804 (La. App. 4 Cir. 03/15/06); 933 So. 2d 168.

Original Jurisdiction: Orleans Parish.

Trier of Fact: Judge.

Circumstances: The plaintiffs filed suit, each alleging that their deceased father contracted life threatening and/or life ending diseases after being exposed to asbestos while working for long periods of time along the wharves on the Mississippi River in New Orleans, Louisiana.

Plaintiff One:

Circumstances: The plaintiffs (which include the surviving spouse and adult children of the decedent) filed a state law wrongful death, survival, and general Louisiana tort law action against the defendants. The suit alleged that the decedent contracted lung cancer as a result of his daily exposure to asbestos while on the job. The decedent died at the age of 76 from a self-inflicted gunshot wound. The plaintiffs argued that his depression-induced suicide was causally related to his terminal lung cancer.

Plaintiffs Occupation: Cooper, sack sewer, sweeper, and water boy.

Injury: Lung cancer, self-inflicted gunshot wound due to depression relating to terminal illness.

Permanent Residuals: N/A.

Quantum Award: $500,000 "per plaintiff for the survival action, to be "reduced by a virile share for the liability with whom plaintiffs settled prior to trial," and $1,000,000 for the wrongful death action. However, this award was reduced by the court of appeal, which held that (1) an ambiguous provision in the judgment required that the damage awards indeed be reduced by one virile share for each defendant with whom the plaintiff had already settled; (2) the damage award in the survival action was a single award of $500,000; (3) the defendant Dock Board owed no duty to the plaintiffs to maintain a workplace safe from exposure due to asbestos; (4) the defendant Dock Board was not strictly liable for a longshoreman's exposure to asbestos cargo; and (5) the defendant ship repair companies did not breach a general duty to longshoremen to prevent foreseeable harm from asbestos exposure under the substantial factor test.

Plaintiff Two:

Circumstances: The plaintiff (the child of the decedent) filed state law wrongful death, survival, and general Louisiana tort law action against the defendants. The suit alleged that the decedent contracted mesothelioma from his exposure to asbestos while unloading cargo over the course of twenty years. The decedent died from mesothelioma at the age of 61.

Plaintiffs Occupation: Longshoreman.

Injury: Death due to mesothelioma.

Permanent Residuals: N/A.

Quantum Award: $500,000 for the survival action, to be "reduced by a virile share for the liability with whom the plaintiffs settled prior to trial," and $2,000,000 for the wrongful death action. However, this award was reduced by the court of appeal for the same reasons noted above.

DEPRESSION AND CHRONIC PAIN SYNDROME

Citation: Coutee v. Global Marine Drilling Co., 2005-0756 (La. 02/22/06); 924 So. 2d 112.

Original Jurisdiction: Lafayette Parish.

Trier of Fact: Judge.

Circumstances: The plaintiff was injured when he attempted to remove a lubricator on the blow out preventer stack, located on the well head of a jack-up offshore drilling rig. While loosening a bolt, the plaintiff fell off of the small crescent platform which had been installed by the defendant to facilitate such activities. The plaintiffs safety harness did not work properly, which caused him to fall further and faster than he should have, leaving him with pain throughout his entire body. The plaintiff noted that his neck, back and hip, on both the left and right sides, were particularly affected by this fall.

Plaintiffs Occupation: Seaman.

Injury: Major episodic depression, moderate secondary to persistent back pain and chronic pain syndrome.

Permanent Residuals: Unknown.

Quantum Award: $100,000 in general damages; $60,000 in past lost wages; and $300,000 in future lost wages. The trial court determined that the defendant had not violated a Coast Guard safety provision; thus, the defendant was not negligent per se and the plaintiffs damages were denied. The court of appeal reversed, finding the defendant to be negligent per se and awarding the plaintiff the damages mentioned above. However, the Louisiana Supreme Court reversed and reinstated the trial court's ruling, holding that the lower court's ruling was clearly supported by a reasonable factual basis in the record.

WRIST

Citation: Wendelboe v. SeaRiver Maritime, Inc., 2006-0013 (La. App. 1 Cir. 11/03/06); 950 So. 2d 826.

Original Jurisdiction: East Baton Rouge Parish.

Trier of Fact: Judge.

Circumstances: The plaintiff suffered substantial injury to his left wrist after a powerful wave struck the ship, forcing him to hold onto the rail of a vessel. It should be noted that this large wave washed the chief mate into the sea, where his body was later recovered.

Plaintiffs Occupation: Chief engineer and safety coordinator.

Injury: Substantial wrist injury.

Permanent Residuals: Unknown.

Quantum Award: $11,240 for maintenance; $17,206.65 for past medical expenses; and $460,000 for ongoing disability benefits. The court of appeal reversed this award, holding that under the collateral source rule, the plaintiffs recovery could be set off by the amount of disability benefits paid to him in the judgment.
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Article Details
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Title Annotation:maritime personal injury awards
Author:Shaver, Jonathan
Publication:Loyola Maritime Law Journal
Geographic Code:1USA
Date:Jan 1, 2007
Words:1705
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