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.
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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: December 28, 2015
By: Frederick B. Goldsmith
In Collins v. A.B.C. Marine Towing, L.L.C. and Board of Commissioners of the Port of New Orleans, 2015 WL 9257862 (E.D. La. Dec. 18, 2015), a Louisiana federal court reconsidered its prior decision and denied the Board of Commissioners of the Port of New Orleans’ motion to dismiss punitive damages claims against it. The case grew out of the accident which occurred when a tug, operated by ABC Marine, towing a deck barge owned by Boh Bros. Construction Co., was transiting the Inner Harbor Navigation Canal in Orleans Parish, Louisiana. Aboard the barge was a large crane. Around midnight on August 13, 2014, the mast of the crane struck the Florida Avenue lift bridge, which had not been raised to its highest position. The crane boom then fell atop the tug’s pilothouse, killing tug captain, Michael Collins, and seriously damaging the crane barge.While the Bridge’s Operator Manual required the bridge to be opened to its fullest extent for each opening, the Court found “several bridge tenders testified that they did not review any operating or policy manuals as part of their bridge tender training.”
The lift bridge also suffered from mechanical problems before the accident, leading bridge tenders to deviate from the Operator’s Manual and not fully open the bridge for each opening. Instead, the bridge tenders were trained to only raise the bridge several feet above the height requested by each passing vessel. On the night of the accident, the bridge tender claimed she raised the bridge four feet higher than that requested by Captain Collins. But this was not high enough.
Why did the Court change its position? Boh Bros., owner of the crane barge, showed the Court video which revealed the Board’s bridge tenders, even after this fatal accident, continued to fail to raise the bridge to its fullest extent. The Court also referenced a federal law, specifically a Coast Guard bridge operation regulation found at 33 C.F.R. § 117.5, which also required the Board to “fully open” the bridge every time (“[e]xcept as otherwise authorized or required by this part, drawbridges must open promptly and fully for the passage of vessels when a request or signal to open is given in accordance with this subpart.”).
The Court concluded:
“Therefore, notwithstanding the fatal tragedy that is the basis of this case, the video footage demonstrates that the Board continues to disregard the mandate of 33 C.F.R. § 117.5. The Court appreciates the Board’s argument that this video footage is inapposite because it was taken on a day when the Bridge was undergoing electrical repairs. However, the Court notes that any conclusions it might draw from this video footage would be based on material facts in dispute. In other words, whether or not this evidence confirms that the Board had in the past and continues to act with reckless conduct and callous disregard for life and property sufficient to justify an award of punitive damages is not an issue that can be determined summarily at this time in view of their arguably continuing practice. Rather, this new evidence, particularly taken together with the genuine issues of material fact discussed in the October 14 Order & Reasons, introduces a new fact issue that must be decided at trial.”
The Court had previously decided that punitive damages were available under the general maritime law in this case, and denied a defense motion to dismiss them as a matter of law.
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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 email@example.com. Our website is www.golawllc.com. While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider taking cases anywhere on the U.S. inland waterways.
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.”
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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 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.
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.”
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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 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: April 24, 2015
By: Frederick B. Goldsmith
Ciro Charles Hicks was serving as a deckhand on the Tug PATRIOT, operated by Vane Line Bunkering, Inc., when he injured his shoulder while handling heavy towing gear. About two months later, following a diagnosis of a possible rotator cuff tear, and failure of a cortisone injection to relieve his pain, Hicks underwent surgery on his shoulder. Afterwards, he underwent several months of physical therapy, yet continued to have significant pain in his shoulder. Five months after the surgery, Hicks told his treating physician he still had limited range of motion of his arm.
Vane Line put Hicks under surveillance. The investigator obtained video of Hicks planting a small tree and playing with his grandson. In response to Hicks’ doctor’s request for Vane Line to approve an additional MRI scan, Vane Line showed the doctor the surveillance video and a document purporting to show that Hicks’ job as a deckhand only required light lifting–something Vane Line later conceded was inaccurate. Based on the video and the incorrect work requirements document, this physician opined Hicks was fit to return to work. Vane Line then terminated Hicks’ maintenance and cure payments.
Hicks then saw a second doctor, who diagnosed a recurrent rotator cuff tear. The second doctor recommended another surgery followed by six months of physical therapy to repair the additional shoulder damage. Because of the maintenance rate Vane Line had been paying him before it cut off maintenance, $15 per day, versus his actual food and lodging costs of $69.67 per day, Hicks felt compelled to return to work, even though the second physician had told him his shoulder was still injured. Severe financial difficulties caused Hicks to miss some of his physical therapy appointments, his house was foreclosed upon, and he was unable to pay for health insurance.
Hicks then sued Vane Line in federal court. As reported previously on this blog, the jury found in favor of his employer on Hicks’ Jones Act negligence and general maritime law unseaworthiness claims, but for Hicks on his general maritime law maintenance and cure claim. The jury found Vane Line breached its general maritime law maintenance obligation to Hicks by paying him an insufficient daily maintenance rate and for prematurely cutting-off maintenance. The jury verdict included $77,000 in compensatory damages for past maintenance and cure, $16,000 in future maintenance, $97,000 in future cure, and $132,000 to compensate for past pain and suffering. The jury also found the employer’s failure to pay maintenance and cure unreasonable and willful and included in its verdict an additional $123,000 in punitive damages. Based on the jury’s finding of willfulness, the district court, under Federal Rule of Civil Procedure 54(d), granted Hicks an additional $112,083.77 in attorney’s fees.
Recently, in Hicks v. Tug PATRIOT, 2015 WL 1740383 (2d Cir. Apr. 17, 2015), the U.S. Second Circuit Court of Appeals affirmed the trial court’s judgment in its entirety. It found the jury’s findings as to the culpability of Vane Line’s conduct and the damages caused Hicks were entitled to deference, and that Hicks was also entitled, due to Vane Line’s willful conduct, to both attorney’s fees and punitive damages. The appeals court found support for its decision in the U.S. Supreme Court’s 2009 decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009), in which the Court ruled that punitive damages are available to a seaman under the general maritime law for an employer’s willful failure to pay maintenance and cure.
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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings claims 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. 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 (toll-free), 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com. We practice primarily in PA, WV, and OH, but also all over the inland waterways.