Category Archives: WV maritime lawyer

$400,000 Judgment for Seaman’s Pre-Death Fear and Conscious Pain and Suffering Affirmed on Appeal

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.'”

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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 info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

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WA State Supreme Court: Jones Act Seaman Can Recover Punitive Damages in Unseaworthiness Claim

In Tabingo v. American Triumph LLC, No. 92913-1 (Wa. March 9, 2017) (en banc), the Washington (state) Supreme Court held, as a matter of law, the issue of the recoverability of punitive damages in a Jones Act seaman’s general maritime law unseaworthiness claim is governed by the U.S. Supreme Court’s analysis in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009).  The Washington Supreme Court, frontally disagreeing with the oft-cited U.S. Court of Appeals for the Fifth Circuit’s en banc decision in McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014), which held the issue of the recoverability of punitive damages in a GML unseaworthiness claim is controlled by the U.S. Supreme Court’s earlier decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), wrote:

“It followed Miles‘s reasoning, noting that because the Jones Act limits recovery of punitive damages for actions brought under it, the same result must occur when a Jones Act claim and general maritime claim are joined in the same action. McBride, 768 F.3d at 388-89. However, as discussed above, this rationale misinterprets both Miles and its interaction with TownsendMiles is limited to tort remedies grounded in statute. Unseaworthiness is not such a remedy. Congress has not directly addressed the damages available for an unseaworthiness claim. Because of this, following Townsend, punitive damages for unseaworthiness have not been curtailed. Absent an indication that a general maritime cause of action has been removed from the general maritime rule, common law remedies are still available. Therefore, we apply Townsend‘s rationale and find that punitive damages are available for unseaworthiness claims.”

The facts of the underlying serious injury, as alleged by the plaintiff, Allan Tabingo, as summarized by the Court, are as follows:

“In February 2015, Tabingo was tasked with moving the fish below decks. He was on his knees near the hatch’s hinge, gathering the last remaining fish, when another deckhand started closing the hatch. Realizing how close Tabingo’ s hands were to the hatch, the deckhand attempted to correct his mistake. However, the hatch’s control handle was broken and the deckhand could not stop the hatch. The hydraulic hatch closed on Tabingo’ s hand, resulting in the amputation of two fingers. Tabingo alleges that American Seafoods knew about the broken handle for two years before the incident but had failed to repair it.”

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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the rights of commercial vessel crewmembers. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat and barge crewmembers–and their families, 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, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about us on our website, http://www.golawllc.com.

Court Orders Towboat Company to Produce Surveillance Video Before Crewman’s Deposition

In Meyer v. Turn Services, L.L.C., 2016 WL 6610931 (E.D. La.  Nov. 9, 2016), a federal magistrate judge granted the plaintiff towboat crewman’s motion to compel the defendant towboat company to produce surveillance video it had shot of the crewman.  The Court also denied the company’s motion for a protective order to allow it to withhold the video until after its lawyer had taken the crewman’s deposition.  Magistrate Judge Wilkinson wrote:

“Defendant has failed to make a particular and specific demonstration of fact, that withholding [its] surveillance evidence will either encourage a dishonest plaintiff to testify honestly or enable them to catch plaintiff in a lie….To conclude that a witness would lie or would testify truthfully only because of the threat that a surveillance tape might exist is simply stereotyping, an exercise in speculation….[Defendant’s argument is] a faulty one, because it flies directly in the face of the very purpose of discovery. The federal rules promote broad discovery so that all relevant evidence is disclosed as early as possible,…a fair contest, where each party can knowledgeably evaluate the strength of its evidence and chances of ultimate success.”

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“To permit plaintiff’s deposition to go forward before production of the surveillance evidence that all parties know exists undermines the search for truth, inhibits full trial preparation and settlement evaluation and invites an evidentiary mess at trial. I have reviewed numerous surveillance films and photographs in personal injury cases during my 21 years as a magistrate judge, both during and before trial. They depict what they depict, but seldom provide a full evidentiary picture. Invariably, the secretly recorded plaintiff has some explanation for the conduct being photographed, some testimony about the absolute necessity of his or her engaging in the photographed activity or some complaint that the photography does not also show the pain, discomfort, disability or medical treatment experienced in the aftermath of the surreptitiously recorded activity. The very purpose of discovery is to get all such facts and explanations on the table and out in the open, so that the case may be fully and accurately evaluated and adjudicated.”

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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–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 info@golawllc.com.  Our website is www.golawllc.com.

Texas Federal Judge Sends to Trial Case of Deckhand Who Seriously Injured His Back Trying to Swing a Barge Swivel Winch

In Bordas v. Marquette Transp. Co. Gulf-Inland LLC, 2016 WL 2866266 (S.D. Tex. Apr. 26, 2016), report and recommendation adopted, 2016 WL 2858905 (S.D. Tex. May 16, 2016), U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas agreed with U.S. Magistrate Judge Jason B. Libby that Marquette Transportation Company Gulf–Inland, L.L.C. deckhand John Bordas’ case against Marquette, his employer and the operator of his towboat, and Ingram Barge Company, the owner of the barge upon which he was injured, should be tried, and thus denied both defendants’ pretrial motions for summary judgment.  Due to his injuries, Bordas had to undergo three back surgeries, including a lumbar fusion.  He was working as a first mate for Marquette aboard its towboat, the M/V ST. JOSEPH.  Bordas claimed he injured his back while aboard Ingram’s barge, in the process of securing a second barge into tow.  He alleged that as he tried to singlehandedly move the swivel winch on the Ingram barge into position, it became caught or stuck and caused his injury.

The Court described how the defendants tried to lay all blame for the injury on Bordas himself:

“Here, Marquette moves for summary judgment, arguing it cannot be held liable for Plaintiff’s injury because the sole cause of Plaintiff’s injuries ‘was wholly unexpected, undetectable, and was not caused or contributed to by any of Marquette’s acts or omissions.’ Marquette also argues Plaintiff ‘was the only person in a position to judge whether the winch was functioning and how much force he could safely apply.’ In making these arguments, Marquette relies solely on Plaintiff’s testimony that there was adequate crew to perform the operation, Plaintiff inspected the barge beforehand and all equipment appeared normal, nothing indicated the subject winch was defective, and he injured himself when he attempted to move the winch and it did not move or swivel as designed.”

Captain Phillip Hogan, the main captain of the M/V ST. JOSEPH, however, testified at deposition about “the status of swivel winches in the industry, their known hazards, and the condition of the winch in question.”  The Court found Captain Hogan’s testimony sufficient to establish a material issue of fact for trial “as to whether Marquette violated its duty to provide Bordas with a safe place to work through its failure to inspect the Ingram barge and its winches.”  The Court wrote, “an employer has a duty to inspect third party ships to which it sends its employee to work upon….If, by reasonable inspection, Marquette could have discovered the improperly functioning winch, then Marquette can be charged with notice of that condition.”

In denying Ingram–the barge owner’s–motion for summary judgement, the Court again relied on Captain Hogan’s testimony, writing:

“Further, Captain Hogan’s testimony establishes a deck hand from the towing vessel is at some point going to be on a towed barge to make and break tow and the towed barge’s winches are used to make and break tow. A defective or non-functioning winch could easily cause harm to the deckhand of the towing vessel. Captain Hogan’s testimony provides some evidence that the very nature of swivel winches causes hazards that are not present with stationary winches and the industry is moving away from swivel winches due to their hazards. Plaintiff has produced evidence that creates an issue of material fact–whether Ingram knew or should have known the swivel winch on its barge was not working properly and advised Marquette.

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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–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 info@golawllc.com.  Our website is www.golawllc.com.  While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider accepting cases anywhere in the U.S., typically with assistance from local counsel.

Court Finds Harbor Towboat Deckhand Work May Well be a Two-Man Job

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.

A 35-foot barge wire similar to what Ingram deckhand Chase Keeney was required to carry and "jerk" singlehandedly.

A 35-foot, 100-120 pound, barge wire similar to what deckhand Chase Keeney was required to carry and “jerk” single-handedly.

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 info@golawllc.com.  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.

Punitive Damages Claim Against Operator of Lift Bridge, Which Crushed Tug’s Wheelhouse, Killing Captain, May Proceed to Trial

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.

Florida Avenue lift bridge spanning the Inner Harbor Navigation Canal in Orleans Parish, Louisiana

Florida Avenue lift bridge spanning the Inner Harbor Navigation Canal in Orleans Parish, Louisiana

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 info@golawllc.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.

Towboat Company’s Pre-Trial Attack on Plaintiff Deckhand’s Liability Expert Fails

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 info@golawllc.com.  Our website is www.golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.