Published: April 14, 2017
By: Frederick B. Goldsmith
In McBride v. Estis Well Service, L.L.C., 2017 WL 1321979 (5th Cir. Apr. 10, 2017), Sky Sonnier, a crewman on a barge supporting a truck-mounted drilling rig operating in Louisiana navigable waters, was killed when the rig and truck toppled over, pinning him between the derrick and mud tank. The Fifth Circuit Court of Appeals affirmed the district judge’s finding that Sonnier’s survivors were entitled to recover $400,000 in damages for the fear he experienced trying to avoid the impact and the few minutes of conscious pain and suffering he endured before he expired. The appeals court wrote:
“As to pre-death conscious pain and suffering, the pathologist who performed the autopsy on Sonnier testified that Sonnier could have been conscious and aware for up to five minutes after impact, but was more likely than not conscious for one to two minutes after impact. Moreover, witness testimony claimed that Sonnier was alive and gurgling blood shortly after impact, and the district court appears to have found this testimony credible.”
The appellate court noted that the Jones Act enables a plaintiff to recover damages for pre-death pain and suffering, and that “[c]ompensable pain and suffering includes a victim’s ’emotional injury caused by fear of physical injury to himself.'” For a plaintiff to recover damages for a decedent’s post-injury pain and suffering, “he ‘must prove, by a preponderance of the evidence, that the decedent was conscious after realizing his danger.'”
Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.
If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or firstname.lastname@example.org. We invite you to learn more about our lawyers and our law firm on our website, www.golawllc.com.
Published: January 9, 2017
By: Frederick B. Goldsmith
In Seemann v. Coastal Environmental Group, Inc., 2016 WL 7015728 (E.D.N.Y. Nov. 29, 2016), Johnny Seemann, a crewman aboard a self-propelled barge named the “Army I,” claimed he hurt his back and shoulder when he slipped and fell on a patch of ice and/or snow on the deck of the barge. Among other claims, Seemann alleged the company which owned the barge but had chartered it out was nevertheless liable for the conditions aboard the barge which caused his injuries. Seemann claimed the deck was not properly de-iced, lacked a non-skid surface, and his requests for salt or de-icing materials had gone unfulfilled.
The Court denied the barge owner’s motion to dismiss Seemann’s unseaworthiness claim, writing:
“The Second Circuit [Court of Appeals] has held that the presence of ice on a ship’s deck may present a condition of unseaworthiness. In Oxley v. City of N.Y., 923 F.2d 22 (2d Cir. 1991), the court held that a district court’s granting of summary judgment for a defendant owner was improper where a third party had slipped on ice that had accumulated on the deck and fell on the plaintiff, causing injuries to the plaintiff. Id. at 24–26. The court stated: ‘It seems to us that [the plaintiff’s] claim of unseaworthiness also must be resolved by a jury. To prevail on this claim, [the plaintiff] need only prove that the [vessel] was insufficiently or defectively equipped, and that his injuries resulted from the unseaworthy condition of the vessel.’ Id. at 26 (citing Waldron v. Moore–McCormack Lines, Inc., 386 U.S. 724, 726, 87 S.Ct. 1410, 1412, 18 L.Ed.2d 482 (1967); Poignant v. United States, 225 F.2d 595, 596 (2d Cir. 1955)), The Oxley court specifically referred to evidence in the record that showed that the vessel was not adequately furnished with sand and that the deck heating system was inadequate. Id.”
The Court cited other decisions holding that ice or a slippery substance on deck may render a vessel unseaworthy, including conditions such as wet and melted sugar; steps which are painted and maintained so as to be excessively slippery, especially when wet; where design of the vessel may have contributed to the accumulation of ice on deck; and degreaser solvent which is left on deck and the area not cordoned-off nor warning signs posted.
The Court noted the law in this realm is essentially this: “a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled to a deck that is not unreasonably slippery.”
Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat crewmembers–and their families. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or email@example.com. Our website is www.golawllc.com.
Published: April 29, 2016
By: Frederick B. Goldsmith
In Keeney v. Ingram Barge Company, 2016 WL 1660398 (M.D. Tenn. Apr. 27, 2016), a federal district judge in Nashville denied Ingram Barge Company’s motion to dismiss the Jones Act negligence and general maritime law unseaworthiness claims in the lawsuit brought by Chase Keeney, an experienced deckhand aboard its harbor towboat, the M/V WILLARD HAMMOND. Keeney claimed he had seriously injured his back, and had to undergo back surgery, because he was forced to work alone while building tow, specifically carrying ratchets and jerking wires.
Keeney worked the 12-hour day shift on Ingram’s harbor boat. He conceded there was nothing wrong with the barge on which he was working, the towboat itself, or any of the wires or ratchets with which he was required to work. Rather, Keeney claimed Ingram was at fault because he was forced to perform the heavy manual labor of a deckhand unassisted, because the other deckhand on his watch often would not help him, the company knew this, but did nothing about it.
Keeney’s claims were supported by an expert, Donald J. Green, who opined “the cause of this accident was negligence on the part of the defendants, Ingram Barge Company, for failure to provide Mr. Chase Keeney a safe workplace free from hazards. Reportedly, Mr. Keeney was required to perform repetitive heavy lifting and jerking ratchets to take out slack in ‘laying a wire’ without assistance. These are functions that are typically performed by two persons working together when making tow or securing barges in a tow. Mr. Keeney repeatedly handled heavy rigging wires and ratchets without sufficient assistance. Had another deckhand been available to help Mr. Keeney it is likely that he, Mr. Keeney, would not have had to repetitively strain laying wires making up tows, and it is more likely than not that this incident could have been avoided.” Green added, “Ingram Barge Company failed to provide proper supervision or instruction to Mr. Keeney regarding safe procedures for transferring rigging wires from barges to tow boats and other barges” and “[r]equiring or allowing Mr. Keeney to work alone deploying or laying wires without assistance more than likely caused his injuries.”
Keeney testified at his deposition that “I was doing the job of two men by myself a lot of the times where it takes two people to pull up a wire and strap it in, I was doing it all by myself.”
The Court found that while the wire and ratchet work Keeney was performing can be done by one man, “it does appear that, if not mandated, it was at least preferable to have two men laying wire.” The Court also found it significant that Keeney had testified at deposition that before his accident he had reported to the captain of his towboat the fact his fellow deckhand, whom Ingram ultimately terminated due to his work habits, was routinely not helping him.
* * *
Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers and their families. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com. While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider taking cases anywhere in the U.S.
Published: July 31, 2015
By: Frederick B. Goldsmith
In Diamond Offshore Servs. Ltd. v. Williams, 2015 WL 4480577 (Tex. App. — Houston [1st. Dist.] July 21, 2015), Willie David Williams sued Diamond Offshore for negligence under the Jones Act and unseaworthiness under the general maritime law after he seriously injured his back repairing equipment aboard an offshore oil rig owned and operated by Diamond Offshore. The trial judge entered judgment on the jury’s verdict, after credits and offsets had been applied, delivering to Williams approximately $8.5 million in compensatory damages and $235,381 in pre- and post-judgment interest. Diamond Offshore appealed the trial court’s judgment, claiming the trial judge made numerous legal errors, including preventing Diamond Offshore from showing the jury surveillance video its investigator had taken of Williams working outside.
The surveillance video was eighty-minutes long and showed Williams performing various outdoor tasks, such as using an excavator to haul debris and working on a vehicle, over the course of three days, years after the accident and after Williams’ back surgeries. The trial judge ruled the video could not be used as substantive evidence, but only for impeachment purposes, in other words, to try to show Williams was lying if he denied doing any of the things the video showed him doing. Williams’ lawyers argued the video should be excluded from the trial under evidence rule 403 because the prejudicial effect of what they termed the “heavily edited” video substantially outweighed any probative value.
The appeals court found significant the fact the “video only reflects Williams’s outside activities and does not reflect what he did when he was not outside or whether he was in pain as a result of his activities.” Also, in his trial testimony, Williams admitted he could perform the activities depicted in the surveillance video, although he added he could only engage in these activities “for short periods of time before he felt pain and that he would be in pain later after engaging in these activities.”
In affirming the trial judge’s decision to not allow the jury to see the surveillance video, the appeals court discussed how a “trial court’s evidentiary rulings are committed to the court’s ‘sound discretion,’ and we must uphold the court’s ruling if there is any basis for doing so.” While in the trial transcript, the trial judge did not articulate a reason for its rulings, instead merely saying during a pre-trial hearing that Diamond Offshore could “keep [the surveillance video] in your reserve bank for impeachment” and that, if Williams “opens the door, then we’ll take a look at it.” Similarly, when Diamond Offshore offered the surveillance video after one of Williams’ medical experts testified, the court stated, “Ruling stands the same,” and when Diamond Offshore offered the video after cross-examination of Williams, the trial court stated, “No, not admitting,” without providing a reason.
The appellate court found that “[n]o Texas case squarely addresses the issue present here—the admissibility of post-accident surveillance videotapes as either substantive or impeachment evidence—and cases from other jurisdictions have emphasized the trial court’s discretion in ruling on the admissibility of such evidence, upholding trial courts’ rulings admitting post-accident surveillance videos and upholding rulings excluding this evidence. In the absence of authority binding on this Court, we cannot conclude that the trial court abused its discretion in excluding the post-accident surveillance video offered by Diamond Offshore. The trial court could have reasonably determined that the proffered video, which contained clips from three different days of surveillance edited together into one continuous hour-long video and depicted Williams performing activities that he admitted that he could do, albeit with pain later, created an impression that Williams could engage in physical activity for long periods of time without needing rest and without apparent pain and thus that the prejudicial effect of the video outweighed the video’s probative value. … We therefore hold that the trial court did not abuse its discretion in excluding the surveillance video proffered by Diamond Offshore.”
* * *
Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings lawsuits for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law on behalf of commercial vessel crewmembers, both men and women, and we regularly face situations where the defendant, usually our client’s employer, has hired an investigator to secretly shoot surveillance video of our client. This decision highlights how those videos can often be unfair in what they don’t show about how an accident has injured our client. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or email@example.com. Our website is www.golawllc.com. We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.
Published: June 23, 2015
By: Frederick B. Goldsmith
In Paster v. Ingram Barge Company, 2015 WL 3680700 (E.D. La. June 12, 2015), deckhand Tommy Paster sued Ingram, his employer and the owner/operator of the towboat, the M/V O.A. FRANKS, alleging he seriously injured his back while standing on the edge of a barge and using a three to four-foot pole with a hook attached to it to grab equipment from the deck of the towboat located several feet below. After hooking the equipment, Paster was able to pull it up to the barge, unassisted. And while he was able to work the rest of the day, Paster claims the next day he awoke with pain radiating from his back down his leg — classic signs of a vertebral disc injury. When he was lifting the equipment the day before, Paster claims he felt a “twinge” in his back. Paster’s attorney made claims against Ingram in a federal court lawsuit under the Jones Act, for negligence, and under the general maritime law, for unseaworthiness.
Paster’s lawyer hired a liability expert, Robert E. “Bob” Borison, to opine on the cause of Paster’s accident. In his report, Borison attributed the accident to, among other things, Ingram’s failure to have conducted essentially a job hazard analysis of the lifting operation in question, and failure to have properly trained Paster on proper lifting techniques in these circumstances. The Court (U.S. District Judge Sarah S. Vance) summarized Borison’s three principal opinions as follows:
“Taken together, Borison’s expert testimony seeks to establish that (1) plaintiff’s work assignment required him to assume an unsafe lifting position, thereby causing his injury, (2) a reasonably competent safety professional would have assigned more manpower or mechanical power to assist plaintiff with the lift, and (3) defendant failed to adequately train plaintiff on proper lifting techniques under the circumstances.”
Ingram filed a pre-trial motion to strike Borison as an expert, to keep the jury from hearing his testimony. Ingram argued Borison’s opinions were based on insufficient facts, misleading, and would not be helpful to the jury. Ingram did not attack Borison’s qualifications, just his opinions.
In addressing Ingram’s motion, Judge Vance first ruled that “Borison’s proposed testimony is not within the scope of a layman’s common experience. Contrary to the defendant’s assertions, Borison’s testimony is not simply that ‘someone should not lift something that is too big or too awkward for them to handle.’ Instead, Borison evaluates the specific posture plaintiff allegedly assumed, and opines that defendant failed to provide the necessary manpower or mechanical assistance to allow plaintiff to make the lift safely. Borison is undoubtedly more familiar with the tools plaintiff was using, the equipment plaintiff was lifting, and the safety risks associated with working on barges than the average layperson. Moreover, as an instructor ‘in the proper method of manual material handling,’ Borison is qualified to opine about the appropriate or customary level of training in the maritime industry.” So, the Court found that, “Borison’s experience and specialized knowledge regarding maritime safety and industry custom will assist the trier of fact in determining whether [Ingram’s] conduct fell beneath the applicable standard of care in this case.”
Judge Vance was also unpersuaded by Ingram’s argument that Borison’s opinions were misleading or factually deficient. As to Ingram’s criticism of Borison’s report insofar as it, in Ingram’s counsel’s words, “creates negligent-sounding section titles that imply Ingram did something wrong, and then declines to identify how Ingram actually merited his condemnation or discusses something entirely different …,” the Court found Borison’s report’s section titles were not evidence and the defendant’s argument “exalts form over substance and erroneously focuses on Borison’s section headings and typeface rather than on the content of Borison’s report.” Judge Vance noted that Borison had written in his report that Ingram had caused plaintiff to assume an unsafe lifting position, failed to allocate sufficient resources to allow plaintiff to make the lift safely, and failed to adequately train plaintiff.”
Finally, in ruling that Borison would be permitted to testify before the jury as to each of the opinions appearing in his report, Judge Vance wrote:
“Although the Court agrees that Borison’s report is not the model of clarity, defendant’s cavils about Borison’s headings do not render Borison’s underlying opinions inadmissible. Moreover, Borison states that he bases his opinions on an interview with plaintiff, defendant’s records, and thirty years of experience in the industry. To the extent defendant disputes the underlying facts or disagrees with Borison’s interpretation of those facts, defendant may cross-examine Borison at trial.”
* * *
Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings lawsuits for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law on behalf of commercial vessel crewmembers, both men and women, such as deckhands, mates, cooks, engineers, pilots, and captains, and we regularly hire liability experts to assist the jury’s understanding of how and why our clients’ accidents occurred. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com. We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.