LINDA V. PARKER, District Judge.
This is an admiralty action arising from an injury Plaintiff Abdulmokne Ghaleb ("Plaintiff") sustained on December 29, 2012, while working on Defendant American Steamship Company's marine vessel known as the "ATB KEN BOOTHE, SR." (hereafter "vessel"). On June 26, 2015, a jury returned a verdict in favor of Defendant and against Plaintiff on Plaintiff's claims of negligence (including negligence per se) and unseaworthiness of a vessel under the Jones Act, 46 U.S.C. §§ 30101-30106. (See ECF No. 71.) After the verdict was received, the Court learned that an exhibit the Court ruled to be inadmissible during trial— and which therefore was excluded from evidence— had been included in the exhibit book provided to the jurors during their deliberations. The Court informed counsel for the parties of this discovery and granted them an opportunity to file whatever post-trial motions they deemed necessary as a result of this error.
In the meantime, during the trial, Defendant had moved for judgment as a matter of law and Plaintiff had moved for a directed verdict. (ECF Nos. 65, 69.) The Court had taken the motions under advisement. Those motions, along with the following post-verdict motions, are now pending before the Court:
The motions have been fully briefed. Because the Court entered a Judgment on July 10, 2015, in accordance with the jury's verdict, Defendant's motion for judgment and motion asking the Court to enter a judgment are moot.
Plaintiff seeks a new trial based on the inclusion of an inadmissible and excluded document in the exhibit book provided to the jurors during their deliberations. The document is titled: "American Steamship Company Report of Illness or Injury" (hereafter the "accident report"), which the vessel's captain, Captain David Laban, completed following Plaintiff's injury. Plaintiff places blame on Defendant's counsel for the inclusion of the accident report in the juror's exhibit book, as defense counsel put together the joint exhibit book and purportedly assured Plaintiff's counsel that the book had been purged of all exhibits not admitted at trial. Regardless of who is at fault for the accident report's inclusion (a determination the Court finds it need not make), the Court cannot conclude that Plaintiff is entitled to a new trial as a result.
The parties disagree as to the proper standard to apply in deciding Plaintiff's motion for new trial based on the admission of the accident report. Plaintiff urges the Court to follow the "presumption of prejudice" standard set forth in In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir. 1982). Defendant argues that Plaintiff must demonstrate prejudice as a result of the claimed error. Even if prejudice is presumed, however, Defendant may rebut the presumption. As the Sixth Circuit stated in Beverly Hills Fire Litigation:
695 F.2d at 215 (quoting Stiles v. Lawrie, 211 F.3d 188, 190 (6th Cir. 1954)). The Court concludes that Defendant has made this showing.
As Defendant points out in response to Plaintiff's motion, the contents of the accident report are consistent with the testimony introduced at trial.
Rule 606(b) provides:
Fed. R. Evid. 606. Reviewing the legislative history of the rule, the Fifth Circuit concluded in Peterson v. Wilson, 141 F.3d 573 (1998) "`that Congress made a conscious decision to disallow juror testimony as to the jurors' mental processes or fidelity to the court's instructions.'" Id. at 578 (quoting Robles v. Exxon Corp., 862 F.2d 1201, 1205 (5th Cir.), cert. denied, 490 U.S. 1051 (1989)) (emphasis added in Peterson removed). As such, while Rule 606(b) allows the Court to consider evidence as to whether the accident report was improperly brought to the jury's attention, the rule does not permit the Court to inquire further into the effect of the report on the jury's deliberations. As one district judge has summarized:
Precluded from asking how the jury viewed or considered the accident report and considering only how "an objective `typical juror'" would be effected by it, the Court must conclude that the jury's receipt of the excluded exhibit is not grounds for a new trial. The Court therefore is denying Plaintiff's motion for new trial.
"`Judgment as a matter of law is appropriate when viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion in favor of the moving party.'" Johnson Controls, Inc. v. Jay Indus., Inc., 459 F.3d 717, 723 (6th Cir. 2006) (quoting Tisdale v. Fed. Express Corp., 415 F.3d 516, 527 (6th Cir. 2005)) (additional quotation marks omitted). The court considers the entire trial record, but "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000) (citation omitted). "That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses." Id. (internal quotation marks and citation omitted). The court does not determine the credibility of the witnesses or weigh the evidence. Littlejohn v. Rose, 768 F.2d 765, 770 (6th Cir. 1985).
As the Court's instructions to the jury provided, Plaintiff claims that Defendant violated 46 U.S.C. § 8104(c) which establishes maximum work hours seamen may work on a towing vessel such as the ATB KEN BOOTH, SR while operating in certain locations.
As several courts have described, in a Jones Act case, "[t]he seamen's burden to prove causation is quite light and has been described as `featherweight.'" McKinney v. Am. River Transport Co., 954 F.Supp.2d 799, 805 (S.D. Ill. 2013) (quoting Cella v. United States, 998 F.2d 418, 427 (7th Cir. 1993)); see also Ferrara v. A & V Fishing, Inc., 99 F.3d 449, 453 (5th Cir. 1996) (citing Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir. 1993)); CSX Transp., Inc. v. McBride, ___ U.S. ___, 131 S.Ct. 2630 (2011) (setting forth the causation standard applicable in Federal Employers' Liability Act (FELA) cases and explaining that it is "a relaxed standard" which requires proof "`that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'") (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506 (1957)).
Comeaux v. T.L. James & Co., Inc., 702 F.2d 1023, 1024 (5th Cir. 1983) (citations omitted).
This lighter evidentiary burden for Jones Act cases flows from the statute's "broad remedial nature." Bavaro v. Grand Victoria Casino, No. 97-C-7921, 2001 WL 289782, at *1 (N.D. Ill. 2001) (quoting Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999)). As the Supreme Court has found, Congress enacted the Jones Act "thereby completing the trilogy of heightened legal protections (unavailable to other maritime workers) that seamen receive because of their exposure to the perils of the sea." Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (internal quotation marks and citation omitted). The Court similarly stated: "Traditional seamen's remedies . . . have been universally recognized as . . . growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected." McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 354 (1991) (internal quotation marks and citation omitted). Courts liberally construe the Jones Act to further Congress' remedial goal. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994).
In the present case, a reasonable jury could only conclude that Defendant violated § 8104(c). The evidence undisputedly showed that Plaintiff, Chief Warren, GVA AlQasemi, and GVA Ahmed worked more than the hours permitted by the statute in the days leading up to Plaintiff's accident. (See, e.g., Trial Tr. Vol. 7 at Pg ID 1306-23, ECF No. 76; Trial Tr. Vol. 9 at Pg ID 1695-97, 1812-25, ECF No. 89.) Courts "have concluded that the purpose of this statute is to promote safety at sea for the benefit of the ship's crew." Janes v. Grand River Navigation Co., No. 07-cv-14436, 2009 WL 3153074, at *5 (E.D. Mich. Sept. 30, 2009) (citing Roy Crook & Sons, Inc v. Allen, 778 F.2d 1037, 1041-42 (5th Cir. 1986)); see also Elms v. Crowley Marine Service, Inc., No. C95-363Z, 1996 WL 881928, at *6 (W.D. Wash. Sept. 16, 1996). As the Supreme Court explained with respect to the predecessor work hours statute: "[T]he provision, fundamentally, is a measure of precaution against those perilous and often unexpected emergencies of the sea when only immediate and wakeful readiness for action may avert disaster or determine the issue between life and death[.]" O'Hara v. Luckenbach S.S. Co., 269 U.S. 364, 368 (1926). Reasonable minds could come to but one conclusion with respect to whether Defendant's violation of § 8104(c) played at least a slight part in causing Plaintiff's injuries.
GVA AlQasemi and Plaintiff both testified that, as a result of working excessive hours in the days leading up to the accident, they were tired.
For these reasons, the Court finds that a reasonable jury would have to conclude that Defendant's violation of the work hours statute, § 8104(c), played at least some part2012 even if only a slight part2012 in Plaintiff's injury. As such, the Court holds that Plaintiff is entitled to judgment as a matter of law with respect to his negligence per se claim. The Court nevertheless will address Plaintiff's remaining claims for which he argues he is entitled to judgment as a matter of law.
Plaintiff contends that he is entitled to judgment as a matter of law with respect to his negligence claim based on the manner in which Chief Warren supervised and managed the power cable deployment. Plaintiff maintains that Chief Warren was negligent in that he placed Plaintiff in a zone of danger— where he could have been (and was) struck by the power cable. (See ECF No. 79 at Pg ID 1357.)
As the Court instructed the jury, to find Defendant liable to Plaintiff for negligence under the Jones Act, it had to find by a preponderance of the evidence:
(ECF No. 73 at Pg ID 1182.) Negligence under the Jones Act "is determined under the `ordinary prudence' standard normally applicable in negligence cases." Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir.), cert. denied, 534 U.S. 994 (2001). The plaintiff must show "`the breach of a duty to protect against foreseeable risks of harm.'" Id. (quoting Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 437 (4th Cir. 1999)). "It is a fundamental principle that, under the Jones Act, an employer `must have notice and the opportunity to correct an unsafe condition before liability will attach.'" Id. (quoting Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993)). Viewing the evidence in the light most favorable to Defendant, a reasonable jury could have concluded that Chief Warren did not breach a duty to protect Plaintiff from a foreseeable risk of harm.
There was testimony that Chief Warren supervised the power cable maneuver and instructed the seamen where to stand with respect to the cable. (Trial Tr. Vol. 8 & 9 at Pg ID 1723, 1730, 1737, ECF No. 89.) There also was testimony that Chief Warren told Plaintiff to retrieve a heaving line when it was discovered that one had not yet been tied on to the power cable, and that when a heaving line was secured, he told Plaintiff to tie it up to the cable. (Trial Tr. Vol 3 at Pg ID 704-05, ECF No. 66.) However, it is not evident from the trial testimony that Chief Warren instructed Plaintiff on where to stand when Plaintiff went to throw the heaving line to the dock. (Id. at Pg ID 915; see also Hall Dep. Tr. at 85.) Plaintiff testified that Chief Warren told him to "throw the line, that's it." (Trial Tr. Vol. 3 & 4 at Pg ID 915, ECF No. 66.) When asked whether Chief Warren told him what to do as far as putting the [heaving line] through the wire and putting it down, Plaintiff responded: "I know what I do." (Id.)
Moreover, according to Plaintiff and Chief Warren, the power cable was laying on the deck while Plaintiff was tying on the heaving line and preparing to throw it to the dock. (Id. at Pg ID 726; Trial Tr. Vol. 9 at Pg ID 1740, ECF No. 89.) At some point, GVA AlQasemi, GVA Ahmed, Chief Warren, and QMED Pettaway picked the power cable back up; however, there is no evidence that Chief Warren instructed anyone to do so. According to Chief Warren, while Plaintiff was preparing to throw the heaving line to the dock, QMED Pettaway asked Chief Warren a question, causing Chief Warren to turn away from the direction of Plaintiff, GVA AlQasemi, and GVA Ahmed to answer him. (Trial Tr. Vol. 9 at Pg ID 1743.) Chief Warren then heard laughing, which caused him to turn back as GVA AlQasemi and GVA Ahmed dropped the power cable and the cable moved toward Plaintiff. (Id.) As GVA AlQasemi described, this happened "one, two, three." (AlQasemi Dep. Tr. at 67.)
Undoubtedly there was testimony that Chief Warren should have realized that Plaintiff was in a danger zone and either told Plaintiff to move or had the men put the power cable back down. (Hall Dep. Tr. at 177.) A reasonable jury could have disagreed, however, and found that no one was at fault for Plaintiff's injury. See Beech v. Hercules Drilling Co., 691 F.3d 566, 571 (5th Cir. 2012) (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994)) (explaining that neither the Jones Act nor the Federal Employer's Liability Act are workers' compensation statutes and that "[n]either makes `the employer the insurer of the safety of his employees while they are on duty. The basis of [the employer's] liability is his negligence, not the fact that injuries occur.'") As such, the Court concludes that Plaintiff is not entitled to judgment as a matter of law with respect to his negligence claim.
Plaintiff argues that he is entitled to judgment as a matter of law with respect to his unseaworthiness claim because Defendant failed to provide a seaworthy vessel when it supplied an inadequately trained and fatigued crew which led to Plaintiff being placed in a zone of danger where he could be— and was— struck by the power cable. To prove his unseaworthy claim, Plaintiff had to prove by a preponderance of the evidence that: (1) the ship or its equipment or crew was unseaworthy; and (2) such unseaworthiness was a proximate cause of his injury. (ECF No. 73 at Pg ID 1189.) As the Court instructed the jury, Defendant had a legal duty to provide an adequate and competent crew. (Id. at Pg ID 1190.)
The Court finds that a reasonable jury could have concluded that even if Defendant provided a fatigued crew, this was note the proximate cause of Plaintiff's injury. Unlike Plaintiff's negligence per se claim, his unseaworthiness claim required proof that the vessel's unseaworthiness "played a substantial part or was a substantial factor in bringing about or actually causing his injury." (Id. at 1192.) With respect to the crew's training, there was evidence that the crew was sufficiently trained. (Trial Tr. Vol. 7 at Pg ID 1328-30, ECF No. 76.) There in fact was no testimony that the crew members involved in the power cable maneuver were incompetent or inadequately trained and there was sufficient evidence from which a reasonable jury could find that they were properly supervised. Thus there was not only one conclusion that the jury could have reached on this issue. The Court therefore concludes that Plaintiff is not entitled to judgment as a matter of law with respect to his unseaworthiness claim.
For the reasons set forth above, the Court cannot conclude that Plaintiff suffered prejudice as a result of the jury's receipt of the accident report. Therefore, Plaintiff is not entitled to a new trial as a result of its submission to the jury. Having reached this conclusion, the Court holds that Plaintiff is not entitled to costs due to the inclusion of the accident report in the exhibit binder provided to the jury, even if defense counsel is at fault for this error.
The Court also holds that, viewing the evidence in the light most favorable to Defendant, there was not one conclusion that the jury could have reached with respect to Plaintiff's general negligence and unseaworthiness claims. A reasonable jury could have concluded— as this jury did— that Plaintiff failed to establish Defendant's liability for negligence and unseaworthiness under the Jones Act. On the other hand, reasonable minds could come to but one conclusion with respect to Plaintiff's negligence per se claim, and that is that Defendant's violation of § 8104(c) played some part, if only a slight part, in causing his injuries. The Court therefore enters judgment as a matter of law in favor of Plaintiff with respect to that claim.
Accordingly,
46 U.S.C. § 8104(c).
