SUSIE MORGAN, District Judge.
Plaintiff, Henry Luwisch ("Luwisch"), brought a maritime personal injury claim against his employer, American Marine Corporation ("AMC"). Luwisch alleges that, on November 2, 2014, while working on the M/V American Challenger, he fell from the top deck to the second deck of the vessel and sustained injuries. Plaintiff's claims are brought pursuant to the Jones Act
The matter was tried before the Court, sitting in admiralty without a jury, over four days.
Having considered the testimony and other evidence at trial, the arguments of counsel, and the applicable law, the Court now issues the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. To the extent any findings of fact may be construed as conclusions of law, the Court adopts them as such. To the extent any conclusions of law may be construed as findings of fact, the Court adopts them as such.
Luwisch applied for work at AMC on January 12, 2012.
Before Plaintiff was employed by AMC, Robert Shahnazarian, AMC's owner and president, interviewed Luwisch for about 30 minutes by telephone. Shahnazarian did not ask Luwisch any questions about his medical history or health and, instead, focused on Plaintiff's work history. Luwisch was sent, and completed and returned, only two pages of the AMC employment application package.
On page 186 of the application, Plaintiff listed his previous employers, but no one at AMC called any of them in connection with Plaintiff's employment. Plaintiff listed his references on page 190 of the application, and AMC contacted as many of the references as it could. Plaintiff listed "Captain Joe," his co-worker at Dale Martin Offshore, as a reference. AMC did not require Luwisch to complete the company's complete employment package before hiring him. As a result, AMC did not have a completed employment application from Luwisch at the time he was hired.
AMC did require that Plaintiff have a pre-employment physical. On January 19, 2012, Luwisch had a physical examination at Boones Creek Medical Clinic in Tennessee.
Luwisch had worked for many maritime employers over his career and knew that it was common for employers to ask about prior medical history and prior neck and back injuries. He knew this information was important to prospective employers and that they would consider this information in deciding whether to hire him. Plaintiff was aware that AMC vessels are ocean-going, and the health of the crew is especially important to AMC for that reason.
Shahnazarian's daughter, Megan, AMC's recently appointed port captain, was the person who sent Luwisch the two pages of the company's employment application and who reviewed those two pages and the report from Boone's Medical Clinic.
Plaintiff's first assignment was on the M/V American Patriot, helping to put its engine back together. A few months later, Plaintiff received a commendation and a $3,000 bonus for his good work on this project.
On November 2, 2014, the M/V American Challenger was between jobs and was standing by at the Resolve Marine dock in Theodore, Alabama. On November 2, 2014, the crew of the M/V American Challenger included Henry Luwisch and two other men, AB Jamie Gness and OS Gerard Arroyo. Plaintiff, as the chief engineer, was the senior officer on board the M/V American challenger on that day. The M/V American Challenger was not Henry Luwisch's regularly assigned vessel; he had worked on the vessel consistently for only a few months.
On November 1, 2012, there were lines shoreside that needed to be stored on the M/V American Challenger. The vessel's regular crew stowed other lines on the upper deck of the vessel. On the morning of November 2, 2014, Plaintiff discussed with the two deck hands how to get the additional rope to the upper deck. Luwisch ascended by ladder to the top deck of the M/V American Challenger to determine whether there was enough room there to store the rope. Luwisch had never been on this deck of the vessel before and had not seen the rope stored there. The deckhands stayed on the lower deck while Plaintiff climbed to the upper deck.
In order for Luwisch to access the upper deck of the M/V American Challenger, it was necessary for him to climb a permanently affixed ladder and disconnect the chain that was rigged across the opening in the upper deck's handrail where the top of the ladder terminated.
It took Plaintiff four to five minutes to look around the deck, check the junction box, ascertain the tools he would need to perform the repair, and turn to descend the ladder. As he moved to descend the ladder, he tripped over the rope stowed near the top of the ladder and fell through the handrail opening some 10 feet to the lower deck. When Plaintiff fell, the right side of his body hit the paint locker sitting on the lower deck,
AMC did an investigation of the accident. The Incident Log and Actions corroborates Plaintiff's version of the accident.
Immediately after the accident, the deckhands took Plaintiff to the emergency room at Springhill Medical Center. Luwisch complained of moderate neck, shoulder and head pain, and groin pain beginning several minutes prior to arrival.
At that time, Plaintiff was living in Mexico and had no local lodgings. After leaving the hospital, he returned to the M/V American Challenger and stayed there three or four days so he would be able to return to Dr. Roca for follow-up medical care. When the vessel was leaving port to go offshore, Plaintiff was unable to stay on the vessel, so he went to Mexico to see his family. Soon thereafter, he returned to the United States for medical care. His follow up visit with Dr. Cesar Roca of the Alabama Orthopaedic Clinic on November 11, 2014 was limited, by AMC's instruction, to examination of his shoulder only. Dr. Roca noted that Luwisch's main complaint was his right shoulder injury but that he had also scraped his head and his right knee in the accident.
November 20, 2014 was Plaintiff's last day of employment by AMC. When Luwisch informed his employer that he was not able to return to work, AMC started maintenance payments on December 10, 2014.
Plaintiff moved to Amelia, Louisiana in July or August 2016. He completed a forwarding mail request with the post office at that time. When he later went to work for Kim Susan, Plaintiff's mailing address was his brother's home in Larose, Louisiana. He again requested the post office forward his mail to his new address. Plaintiff has had the same cellphone telephone number from the time of the accident until today, but AMC never contacted him on that number to determine whether it was sending the checks to the correct address.
Shahnazarian, the president and 50 percent owner of AMC, testified repeatedly and falsely that Plaintiff's maintenance payments stopped in May 2016 because AMC did not know where to send the checks due to Plaintiff's disappearance. Shahnazarian testified that his employees told him that AMC could not find Luwisch, AMC could not get hold of him, he was out of touch, he was out of the country, and he was off the grid. Shahnazarian later testified that he was given this information by his "administration." Shahnazarian also testified that the checks sent to Plaintiff were returned to the company as undeliverable and that his employees assumed Plaintiff was in Mexico because they could not reach him, and there had been no response to their inquiries. Shahnazarian's testimony was not true.
During the trial, at the Court's direction, AMC provided the Court with what AMC originally represented to be the list of addresses to which AMC sent Plaintiff's maintenance checks.
No maintenance checks were mailed to Plaintiff for the remainder of May 2016 through July 8, 2017.
AMC did not have an independent medical examination of Plaintiff until November 15, 2017. On that date, Dr. Robert examined Plaintiff and opined that Plaintiff did not need the surgery recommended by Dr. Bartholomew. Dr. Robert found that Plaintiff reached maximum medical improvement on December 20, 2017. AMC discontinued maintenance payments at that time.
Plaintiff was employed as a mechanic first with Savard Labor and Professional Staffing from March 2015 through June 2015 and then with Aerial Access Equipment from June 2015 through December 2015. He then worked for All Star Automotive Group, attempting to be retrained as a Ford auto mechanic, but the long period for training and low wages caused him to leave this employment. He then worked as a mechanic for Gulf Coast Equipment Services from March 2016 through June 2016.
Plaintiff worked for Blackwater Diving as a chief engineer from July 9, 2016 through October 2016. In October 2016, Plaintiff went to work for Kim Susan, LLC ("Kim Susan") as a chief engineer at $425 per day. To get employment at Kim Susan, Plaintiff passed a physical examination, but not a full Coast Guard physical.
Luwisch was laid off by Kim Susan on December 31, 2016 but returned to work there from June 5, 2017 to May 9, 2018 at $325 a day. In connection with his return to work for Kim Susan, Plaintiff returned to see Dr. Roca in June of 2017 to get a release for his 2011 shoulder injury.
On his employment applications for Blackwater Diving and Kim Susan, Luwisch denied having a previous injury to his neck and denied recurrent neck and back pain because he feared he would not be employed if he reported these injuries.
Defendant produced a "Separation Notice Alleging Disqualification" dated May 30, 2018 and signed by Grady Fagan, the personnel manager for Kim Susan, but not by the Plaintiff.
Until a couple of months before the trial Plaintiff was buying shrimp from boats and selling it on the roadside.
In December 2014, Plaintiff began seeing Dr. William Alden in Marrero, Louisiana. He had complaints of migraine headaches, right shoulder pain and immobility, shooting pain and numbness in his left arm, and trouble sleeping. Plaintiff returned to Dr. Alden on February 13, 2015 complaining of the same symptoms. A cervical MRI was performed which revealed positive findings at the C4-5, C5-6, and C6-7 levels. The MRI of the right shoulder showed tears of the ventral and superior lips of the cartilaginous glenoid labrum.
Dr. Alden referred Plaintiff to Dr. Troy Beaucoudray, who was qualified as an expert in the field of neurology and pain management. Dr. Beaucoudray first saw Plaintiff on March 31, 2015. While being treated by Dr. Beaucoudray, Plaintiff received epidural steroid injections which gave him short-term relief. Dr. Beaucoudray ordered a third cervical epidural steroid injection for Plaintiff on February 16, 2016. Dr. Beaucoudray testified it was his opinion that to a reasonable degree of medical certainty the injuries suffered by Plaintiff were related to his fall on the M/V American Challenger. Dr. Beaucoudray was aware that on October 29, 2011 Plaintiff had an accident while he was working for Dale Martin Offshore and that Plaintiff had an MRI at that time. Dr. Beaucoudray compared the 2011 MRI to the MRI done in 2015. Dr. Beacoudray testified it was his opinion that any injury from 2011 had been asymptomatic until the accident in 2014. Dr. Beaucoudray recommended that Plaintiff remain off work, avoid any heavy lifting over ten pounds, and do no overhead work or no prolonged neck extension.
After administering conservative treatment to Plaintiff, which was unsuccessful, Dr. Beaucoudray recommended Plaintiff see Dr. Bradley Bartholomew for a surgical evaluation. Because he had not received significant relief, Plaintiff agreed. Dr. Bartholomew testified as an expert in the field of neurosurgery. Dr. Bartholomew first saw Plaintiff on October 22, 2015 for complaints relating to Plaintiff's neck. Dr. Bartholomew did not treat Plaintiff for any shoulder injury. Plaintiff complained to Dr. Bartholomew of neck pain, numbness, tingling down his left arm, and headaches. Dr. Bartholomew saw Plaintiff again on March 10, 2016 after Plaintiff had an epidural steroid injection by Dr. Beaucoudray but was not experiencing pain relief. Dr. Bartholomew discussed surgical options with Plaintiff and recommended an anterior cervical discectomy and fusion at C5-6, C6-7, with the artificial disks being done at C4-5. Dr. Bartholomew informed Plaintiff that he might need additional surgery in the future at the C6-7 level. Plaintiff indicated a desire to proceed with surgery.
Dr. Bartholomew provided an estimate of the surgical costs as $35,000 for his fee, $7,000 for his assistant, and hospital expenses from $50,000 to $75,000. Dr. Bartholomew next saw Plaintiff in January 2017 when Plaintiff reported that he was still having pain and that he had been approved for surgery. Dr. Bartholomew's surgery recommendation remained the same. Dr. Bartholomew scheduled Plaintiff's surgery for January 3, 2017. The surgery was never performed because AMC withdrew its approval.
Dr. Bartholomew's opinion is that Plaintiff had degenerative changes in his spine in 2011 and 2014. He compared Plaintiff's 2011 MRI to his post-accident MRI and found that after the accident the C4-5 level was worse, the edema in the bone at C5-6 and C6-7 looked a little better, and the C6-7 level looked worse with a further loss of disc space and that the disk was pushing back further. Dr. Bartholomew's opinion is that the degenerative changes seen in 2014 were asymptomatic and were exacerbated by the 2014 accident to the point at which they became symptomatic. Dr. Bartholomew's opinion is that Plaintiff's symptoms were caused by the 2014 accident. Dr. Bartholomew observed changes on the 2014 MRI showing a worsening of Plaintiff's condition at two levels, C4-5 and C6-7.
The last time Dr. Bartholomew saw Plaintiff was on November 9, 2017. Plaintiff did not inform Dr. Bartholomew that he had been working during 2015, 2016, and 2017. Dr. Bartholomew's opinion at the time of his deposition on July 11, 2018 was that Plaintiff did not at that time need cervical surgery, as Plaintiff has been able to work and has been treating his symptoms with Advil for the last several years.
Plaintiff submitted to an independent medical examination by Dr. Everett Robert on November 15, 2017. Plaintiff told Dr. Robert that he was a chief engineer on a vessel that goes offshore and that he took Advil to relieve his symptoms. Dr. Robert found Plaintiff's findings on examination were normal and his opinion is that Plaintiff does not need cervical surgery.
Based on the testimony of Dr. Beaucoudray and Dr. Bartholemew, and their comparison of the pre-accident and post-accident MRIs, as well as the testimony of Plaintiff, the Court finds the 2014 accident exacerbated Plaintiff's pre-existing but asymptomatic cervical condition. Plaintiff testified that, before his 2014 accident, he had no physical limitations on his ability to do his job and was enjoying his work for AMC. Plaintiff also testified that, after the accident and up until the time of the trial, he was having migraine headaches, neck pain, difficulty sleeping, numbness and tingling in his left arm, and shooting pains down his left arm. Plaintiff testified that his symptoms interfered with his daily activities and worsened when he was doing the work of a chief engineer. Plaintiff also testified that he was particularly concerned about his ability to climb ladders, particularly if he was carrying a heavy object, because his left arm would sometimes go numb and he would lose his strength. Although it is true Plaintiff worked for various maritime employers after the accident, he did so in pain and out of economic necessity, and he would not be able to do so long-term. The Court finds Plaintiff suffered a loss of future earning capacity as a result of the 2014 accident.
No doctor testified at trial that Plaintiff is in need of cervical surgery at this time. The Court credits the testimony of Dr. Bartholomew and Dr. Robert and finds Plaintiff does not need cervical surgery. The only evidence Plaintiff introduced with respect to future medical expenses was related to the surgery.
Plaintiff's past unpaid medical expenses total $17,489.92.
Glenn Hebert, a certified vocational rehabilitation counselor, testified for Plaintiff.
Based on the testimony of Plaintiff and his treating physicians, as well as his own training and experience, Hebert made a reasonable assumption that Plaintiff could not perform heavy manual labor after the accident. Hebert testified that as of May 2018, Plaintiff was employable but not as a chief engineer on a vessel. Hebert found the Plaintiff does have some transferable skills and is able to do some basic mechanical work and diagnostic testing on diesel engines, and supervise other workers working on engines or repair work on gas engines. Hebert is familiar with labor market surveys, including the hiring practices in the maritime industry, and uses them in his work. Based on his knowledge and experience, Hebert testified the pay for the sort of job Plaintiff is qualified to do is approximately $18.00 an hour.
Nancy Favaloro, a certified vocational rehabilitation counselor, examined Plaintiff for Defendant.
The Court credits the testimony of Plaintiff, his doctors, and Hebert and finds that, as of May 2018, Plaintiff is not able to return his job as a chief engineer on offshore vessels and has suffered a loss of earning capacity. The Court further finds that Hebert would be able to return to work doing the lighter duty jobs described by Hebert at $18.00 an hour.
Dr. Randy Rice testified for Plaintiff as an expert in forensic economic loss calculation.
Dr. Rice based his calculations on the assumption that Plaintiff would have continued to work through his life expectancy if the accident had not occurred, which the Court finds is a reasonable assumption and supported by the record evidence. Dr. Rice calculated the mid-point of Plaintiff's pre-accident wages was $142,271 and used this amount when calculating lost wages. This is a reasonable assumption, as Luwisch's earnings the year immediately prior to his accident were $142,343. Using this approach, Dr. Rice testified Plaintiff's lost wages from the time of the accident through the date of the trial was $257,009. Reducing this amount by the wages Luwisch actually received during this time results in a wage loss claim of
Dr. Rice testified regarding Plaintiff's loss of future earnings, discounted by 0.70 percent. Dr. Rice testified that, under the assumption that Plaintiff would return to work at $18.00 an hour, Plaintiff's net future discounted after-tax wage loss is $867,613.
When the price of oil dropped precipitously in 2014, AMC's business was adversely affected and AMC was forced to cut wages. The wages of an employee such as Plaintiff would have been reduced from the $500 a day rate to $400 day. Dr. Rice did not take this economic downtown into account is estimating future lost wages. The Court finds Plaintiff's future wage and benefits losses should have been reduced to take this into account. The Court finds that it is reasonable to reduce the Plaintiff's loss of future earning capacity and loss of fringe benefits by 25 percent to account for the downturn in the oil and gas industry.
Dr. Rice testified that the present value of Plaintiff's future loss of fringe benefits in the form of health insurance coverage is $72,579 and the present value of his past and discounted future 401K matches and employer profit-sharing total $40,348. The Court will reduce these amounts by twenty-five percent to account for the downturn in the oil and gas industry.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1333, which provides original jurisdiction over admiralty and maritime matters, Rule 9(h) of the Federal Rules of Civil Procedure, and the Jones Act.
The matters before the Court include determination of whether AMC was negligent under the Jones Act, whether the vessel was unseaworthy under general maritime law, whether Plaintiff is entitled to compensatory damages under the Jones Act or general maritime law, whether Plaintiff is entitled to additional maintenance and cure benefits above what has been paid, whether AMC is entitled to prevail on the McCorpen defense, and whether Plaintiff is entitled to punitive damages and attorneys' fees.
At the time of Plaintiff's injury, he was a seaman or member of the crew of the M/V American Challenger, which was at all pertinent times a vessel in navigation.
A seaman who is injured while in the service of a vessel is owed maintenance and cure from his employer until such time as the seaman reaches maximum medical improvement.
An injured seaman who willfully conceals from his employer a pre-existing medical condition may not be entitled to maintenance and cure.
The employer bears the burden of proof as to each of the three prongs of the McCorpen defense.
"Where the shipowner requires a seaman to submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure."
AMC has established that it is entitled to the McCorpen defense in this case. Plaintiff was required to undergo a preemployment examination at Boones Creek Medical Clinic. Plaintiff intentionally concealed his 2008 ATV accident and his 2011 workplace accident during that medical examination when he revealed only his testicular cancer in the History section of the report and answered "None" to the Past/Present Medical Problems in the Personal History Form. The 2011 MRI showed degenerative disc disease, as well as herniation at the C6-7 level. The injury complained of now is herniation at the C6-7 level. AMC has proven it is entitled to the McCorpen defense and is relieved of its duty to provide maintenance and cure on these grounds. As a result, Plaintiff is not entitled to additional maintenance and cure, punitive damages or attorneys' fees.
Defendant AMC owed Luwisch, a seaman, a fundamental duty under the Jones Act to provide him with a reasonably safe place to work.
The standard of causation under the Jones Act is whether the defendant's negligent conduct played any part, even the slightest, in producing the injury.
"The Fifth Circuit does not recognize the primary duty doctrine as a bar to recovery in a Jones Act negligence suit."
"[U]nder the Jones Act and the general maritime law, when the defendant's act aggravates or accelerates a pre-existing condition and renders a plaintiff unable to continue his work, or awakens a dormant condition that causes a plaintiff to experience pain when he did not suffer from pain or disability prior to the aggravation, the defendant can be liable in full for the disability caused."
Under the Jones Act, a plaintiff may recover all of his pecuniary losses.
Evidence concerning economic conditions in the oil and gas industry and their effects on employers may be considered when determining future wage loss.
Under the general maritime law, compensatory damages are those "that have resulted from the failure to pay, such as the aggravation of the seaman's condition, determined by the usual principles applied in tort cases to measure compensatory damages."
AMC failed to provide Plaintiff with a reasonably safe place to work and this failure was negligence partly responsible for Plaintiff's injuries. The rope being at the top of the ladder to the upper deck of the M/V Challenger, partially blocking the walkway, was a dangerous condition in the work place. The rope was routinely stored in that location by the vessel's regular crew and was not placed there by Plaintiff. Plaintiff had been working on the boat for several months and had never seen the rope on the upper deck. The rope had been in that position for an extended period of time. The placement of the rope directly contributed to Plaintiff's fall. The Court finds AMC was 80% contributorily negligent in causing the accident.
Luwisch was aware of the rope partially blocking the pathway at the top of the ladder and that it constituted a hazard. A seaman assigned to a vessel has the obligation under the general maritime law to exercise reasonable care for his own safety. A seaman such as Luwisch is obligated to act with ordinary prudence under the circumstances. This includes his reliance upon his employer to provide a safe work environment. The obligation of Luwisch is to act as a reasonable seaman in like circumstances.
The Plaintiff admitted he saw the rope when he ascended to the top of the ladder. Plaintiff also testified that he recognized the placement of the rope, partially in the walkway at the top of the ladder, as a hazard. Plaintiff's conduct contributed to the cause of the accident. The Court finds Luwisch was 20% contributorily negligent in causing the accident.
In addition to their duties to Luwisch under the Jones Act, AMC, as a vessel owner, had an obligation to provide a seaworthy vessel which is more or less fit for its intended purposes. A vessel is considered unseaworthy unless all its appurtenances and crew are reasonably fit and safe for their intended purposes.
Unseaworthiness must be the result of a condition that persists for such a time as to become related to the status of the vessel.
The credible evidence supports the finding that the M/V Challenger was not fit for its intended purpose. The placement of the rope at the top of the ladder to the upper deck of the M/V Challenger rendered the vessel unseaworthy. The condition did not arise from the ordinary and normal activities or risks of a seaman's work and the condition was not the result of an isolated negligent act. This unseaworthy condition played a substantial part in causing Plaintiff's injury, and the injury was a reasonably probable consequence of the unseaworthiness.
Plaintiff's pre-existing degenerative disc disease in his cervical spine was not symptomatic prior to his November 2, 2014 accident. Competent medical testimony, diagnostic imaging, and Plaintiff's testimony proved that Luwisch's cervical spine injury was exacerbated by this accident. AMC is liable for damages resulting from this exacerbation.
Plaintiff is entitled to recover his past wage loss and his loss of future earning capacity, as well as his future loss of fringe benefits and his past and future loss of retirement contributions.
Plaintiff is entitled to recover his past medical expenses.
As Plaintiff does not need cervical surgery and presented no evidence regarding other future medical expenses, he is not entitled to recover future medical expenses.
Plaintiff is entitled to recover damages for his past and future pain and suffering.
Prejudgment interest is awarded almost as a matter of course in cases where there is liability for unseaworthiness under the general maritime law.
Post-judgment interest on future losses will accrue at the federal rate.
Based on the above Findings of Fact and Conclusions of Law, the Court finds that Plaintiff is entitled to recover the following damages, plus applicable interest:
The Court will enter a judgment by separate order.
