Case: 14-31326 Document: 00513211143 Page: 1 Date Filed: 09/29/2015
REVISED SEPTEMBER 29, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31326 United States Court of Appeals
Fifth Circuit
FILED
MARK BARTO, September 4, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
SHORE CONSTRUCTION, L.L.C.; MCDERMOTT, INC.,
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Mark Barto, an employee of Shore Construction, L.L.C., (“Shore”) was
hurt when he fell while working on a derrick barge operated by McDermott,
Inc. (“McDermott”). Barto sued McDermott under the Jones Act. He also sued
Shore for cure under maritime law. After a bench trial, the district court
entered a judgment against McDermott and Shore. McDermott appeals the
district court’s finding that it was completely at fault for the accident, as well
as several components of the Jones Act damages award. Shore appeals a
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portion of the cure award. We AFFIRM as to most issues but REVERSE and
RENDER as to the award of future lost wages against McDermott.
FACTS AND PROCEEDINGS
Plaintiff-appellee Mark Barto was a Jones Act seaman employed by
Shore. Shore assigned him to work as a rigger aboard Derrick Barge 50 (“DB
50”), a derrick barge operated by McDermott.
Barto had an accident while he was working on DB 50. Barto and several
other crew members were performing an operation in which a cable was taken
from a crane, inspected and subjected to maintenance, and spooled onto a large
spooling machine. As the spooling machine slowly turned to reel in the cable,
Barto was responsible for guiding the cable by tapping it to ensure that the
cable lines did not overlap. He was offered no guidance on how to perform this
task, which is not routine but instead is done approximately once every two
years. Barto had been working on DB 50 for about 5 months and had never
performed this task before. He was also “one of the lowest ranking riggers on
the barge,” as well as “the least experienced.” The barge’s crew included a
superintendent, a foreman, several leadermen, and a number of more
experienced riggers.
The spooling drum was elevated about eight to ten feet above the deck.
To perform his task, Barto first tried to use a two-by-four wooden plank to tap
the cable lines into place, which was the method used by the person he had
seen performing the task previously. But Barto testified that he began having
trouble reaching the spooling drum from the deck. So he decided to get a fir
board and lay it across part of the spooling machine’s frame so that he could
stand on the board. He picked a board that “looked sturdy,” although it already
had a notch cut out of one end. The notch removed a little over half of the
board’s width from approximately the last foot of the board’s length. After
placing the board on the spooling frame, Barto stood on top of the board and
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used a brass hammer to guide the cables. The district court credited Barto’s
testimony that he was standing approximately four feet from the deck and that
the board’s notched end extended over the frame so that it did not bear any
weight.
The district court concluded that Barto’s supervisors could easily see him
on the board, and that they did not tell him to get down because they did not
think it was unsafe. Barto also testified that a leaderman, Rene Vallecillo,
came over and talked to Barto while he was standing on the board. Vallecillo
told Barto to tap the cable lines if they overlapped on the spool, but he did not
tell Barto to get off the board.
In the past, other McDermott employees, including leaderman Vallecillo,
had used fir boards as makeshift scaffolding inside the spooling machine’s
frame. Some McDermott employees had instead performed the task by
standing on the frame itself. Other McDermott employees, however, were able
to perform the task by standing on the deck and tapping the cable using a two-
by-four or even a four-by-four board.
The board on which Barto was standing ultimately broke at the notched
end, and Barto fell. The district court found that, given that Barto had placed
the board so that the notch overhung the frame, “somehow [the board]
apparently moved on him as he was working and broke where the pictures
depict that it broke, which is on the end where it was notched out.”
After the accident, Barto began having pain in his left leg, lower back,
and neck, and he could no longer work. Although Shore paid for most of the
maintenance and cure requested by Barto, Shore refused to pay for the lumbar
surgery recommended by Barto’s neurosurgeon, Dr. Ilyas Munshi. Dr. Munshi
recommended the surgery to reduce pain by removing pressure from the nerve
sac. About one month before trial, Dr. Munshi performed a three-level
laminectomy to remove bone at L2 to L5, which removed the pressure on the
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nerve sac. He then performed a three-level fusion to strengthen the spine.
Shore’s expert witness, another neurosurgeon, admitted that Barto’s nerve sac
was compressed before the surgery but vigorously contested the surgery’s
necessity, maintaining that Barto’s pain was on the wrong side to be caused by
the nerve sac compression.
Dr. Munshi testified by deposition about two weeks after performing the
surgery. He testified that it was too early to tell whether the surgery was
successful, although Barto had reported improvement in his leg pain. Dr.
Munshi testified that, even if the surgery was successful, “[t]here’s a good
chance, the most he may do is light duty work.” Dr. Munshi also testified that,
given his experience with other patients who had made a good recovery from
the surgery he had performed, he “reasonably anticipate[s]” the following
restrictions: “no frequent bending [or] stooping,” weight lifting restrictions, and
restrictions on “[a]nything that puts a lot of stress on his back.” These
restrictions would relate not only to work but also to recreational activities,
and they would be “long-lasting.” At trial about one month later, Barto
testified that he was not feeling any pain other than some neck pain “[o]ff and
on” and some pain from the surgical incision. He testified that, because of the
back and neck injuries, he could not do several things he enjoyed, such as
“jogging, lifting weights, baseball, basketball, a lot of sports,” “yard work,”
“fix[ing] on my car,” and “[p]lay[ing] with my kids.”
Barto sued McDermott for Jones Act negligence. He requested damages
for, among other things, future lost wages and future “physical and mental
pain and suffering and loss of enjoyment of lifestyle.” He also sued Shore for
cure, requesting that it pay for the surgery performed by Dr. Munshi.
The district court held a bench trial and then ruled from the bench. It
held that McDermott was liable under the Jones Act, reasoning that
McDermott failed to provide Barto with a safe place to work. The court also
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held that Barto was not comparatively negligent. As to damages, the court
held that McDermott owed Barto $400,000 in future general damages and
$300,000 in future lost wages. Finally, the court held that Shore was liable for
the surgery costs as cure.
STANDARD OF REVIEW
“The standard of review for a bench trial is well established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.” Becker
v. Tidewater, Inc., 586 F.3d 358, 365 (5th Cir. 2009) (quoting In re Mid–South
Towing Co., 418 F.3d 526, 531 (5th Cir. 2005)) (internal quotation marks
omitted). Reversal is warranted under clear error review only if the court is
“left with the definite and firm conviction that a mistake has been committed.”
Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006) (per curiam)
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)) (internal
quotation marks omitted).
Despite this court’s typical deference to a district court’s factual findings,
“a judgment based on a factual finding derived from an incorrect
understanding of substantive law must be reversed.” Mobil Exploration &
Producing U.S., Inc. v. Cajun Const. Servs., Inc., 45 F.3d 96, 99 (5th Cir. 1995).
DISCUSSION
A. McDermott’s Jones Act Liability
McDermott first argues that it is not liable under the Jones Act. We
generally “review a district court’s finding of negligence and apportionment of
fault for clear error.” Jauch, 470 F.3d at 213. But McDermott argues that we
should automatically reverse here because the district court misunderstood the
law. See Mobil Exploration, 45 F.3d at 99. Specifically, McDermott argues
that the district court erroneously believed that a Jones Act employer has a
duty to provide an absolutely safe place to work (rather than a reasonably safe
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place to work, which is all that is required under Gautreaux v. Scurlock
Marine, Inc., 107 F.3d 331, 339 (5th Cir. 1997) (en banc)).
To demonstrate that the district court misunderstood the law,
McDermott relies upon the district court’s statement that “[u]nder the Jones
Act, of course, the Jones Act employer has a duty, a nondelegable duty to
provide a safe place to work.” The court also found that “the safe method would
have required—should have required proper scaffolding to be erected before
employees were required to climb into or onto this spooling machine.”
Upon a review of the entire record, we reject McDermott’s contention
that the experienced district judge misunderstood elementary principles of
Jones Act liability. The district court never stated that a Jones Act employer
has an absolute duty to provide a safe place to work. Further, the district court
stated that “this is more of a negligence case to me than an unseaworthiness
case,” suggesting that the court recognized that a normal negligence standard
of care applies under the Jones Act. Moreover, in their proposed findings of
fact and conclusions of law, both parties provided the correct legal standard
(ordinary negligence). It seems unlikely that the district court somehow sua
sponte settled upon an incorrect legal standard. Also, some of the reasoning in
the district court’s ruling would made little sense if it thought that McDermott
had an absolute duty to provide a safe place to work. For example, the court
pointed out that “[t]here was scaffolding available on the DB 50. There was
even an experienced scaffolding crew . . . .” If McDermott had an absolute duty
to provide a safe place to work, it would not matter whether scaffolding was
available. Instead, the district court seemed to weigh this fact as evidence that
McDermott’s failure to erect scaffolding was unreasonable. The court also held
that Barto’s supervisors “failed to properly supervise Mr. Barto . . . ,
particularly since this was not a routine job and something he had never done
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before.” This reasoning again suggests that the district court was trying to
discern whether McDermott had exercised a reasonable amount of care.
Because we find that the district court did not misunderstand the law,
we will reverse the negligence finding only if it was clearly erroneous. Jauch,
470 F.3d at 213. We hold that it was not. The record reveals ample evidence
that the standard practice for performing Barto’s assigned task on DB 50
involved seamen figuring out their own makeshift methods of reaching the
spooling drum. 1 The district court did not clearly err in finding that
McDermott failed to provide Barto with a reasonably safe place to work by
failing to provide him with an appropriate way to reach the spooling drum.
B. Barto’s Comparative Negligence
McDermott next challenges the district court’s conclusion that Barto was
not comparatively negligent for the accident. Again, this court “review[s] a
district court’s finding of negligence and apportionment of fault for clear error.”
Jauch, 470 F.3d at 213. We affirm based on this deferential standard of review.
We have held that:
A seaman . . . is obligated under the Jones Act to act with ordinary
prudence under the circumstances. The circumstances of a
seaman’s employment include not only his reliance on his
employer to provide a safe work environment but also his own
experience, training, or education.
Gautreaux, 107 F.3d at 339. Comparative negligence “may reduce the amount
of damages owed [to a seaman] proportionate to his share of fault.” Jauch, 470
1 In particular, the DB 50 superintendent testified that using fir boards as scaffolding
was acceptable and had been done in the past; a DB 50 leaderman testified that using a fir
board was safe and that he had done so himself; and a more experienced DB 50 rigger testified
that he had stood on top of the frame and used a brass hammer to perform Barto’s task. Two
of Barto’s supervisors also testified that they saw him standing on either a board or the frame,
and they apparently thought nothing of it. Admittedly, these supervisors testified that Barto
was standing only two feet from the deck. But the district court found Barto’s recollection
that he was about four feet from the deck to be more credible.
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F.3d at 213. The burden of proving comparative negligence is on the Jones Act
employer. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008)
(“[C]ontributory negligence is an affirmative defense [in a Jones Act case.]”).
McDermott argues that Barto was comparatively negligent because he
selected an improper board (i.e., a fir board with a notch in it) and failed to
secure the board to the spooling machine’s frame. The district court did not
specifically explain why Barto was not negligent, even though he selected a
notched board and failed to secure it. But the court generally explained its
decision not to “impose any comparative fault,” noting that Barto “was the low
man on the totem pole. He was the least experienced. He had never performed
this work before.”
Moreover, the district court credited Barto’s testimony that he had
placed the notched end of the board over the frame such that the notched end
was not supporting any part of his weight. The DB 50 superintendent testified
that, if the notched portion had overhung the frame, “I think the board would
have held [Barto’s] weight.” Also, the board apparently did hold Barto’s weight
for 25 to 30 minutes, further supporting an inference that Barto’s selection of
the board was not negligent. The district court therefore did not clearly err by
finding that McDermott failed to prove that Barto was negligent in his
selection of the board, given how he placed it on the frame.
McDermott also did not demonstrate that a reasonable seaman with
Barto’s “own experience, training, or education” would have realized that he
had to secure the board. See Gautreaux, 107 F.3d at 339 (“The circumstances
of a seaman’s employment include . . . his own experience, training, or
education.”). Indeed, a DB 50 leaderman, Vallecillo, testified that, “[i]f I would
have seen that the board wasn’t banded [(i.e., wasn’t secured to the frame)], I
probably would have tell him something, but I didn’t see that” (emphasis
added). This testimony seems to indicate that even a leaderman would not
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view the failure to secure the board as particularly unsafe, given that Vallecillo
was unsure whether he would have told Barto to get off an unsecured board.
To be sure, McDermott also presented evidence from a barge foreman that the
board should have been secured to the frame. But again, McDermott bore the
burden of proving that Barto was negligent, given his relative inexperience.
Notably, the only other rigger who testified did not opine that the board should
have been secured. And McDermott adduced no other testimony that a
relatively inexperienced rigger like Barto should have known to secure the
board. Further, there was no testimony that the people who had previously
used fir boards to perform Barto’s task had secured the boards. The district
court therefore did not clearly err in finding that McDermott did not prove
Barto’s comparative negligence, given his relative inexperience.
C. Future General Damages
McDermott also challenges the district court’s award of future general
damages in the amount of $400,000. “A district court’s damages award is a
finding of fact, which this court reviews for excessiveness using the clear error
standard.” Lebron v. United States, 279 F.3d 321, 325 (5th Cir. 2002). “Put
otherwise, ‘[w]e do not reverse a verdict for excessiveness except on the
strongest of showings.’” Id. (quoting Dixon v. Int’l Harvester Co., 754 F.2d 573,
590 (5th Cir. 1985)) (alteration in original).
Future general damages are available “for pain and suffering and impact
on one’s normal life routines.” Crador v. La. Dep’t of Highways, 625 F.2d 1227,
1230 (5th Cir. 1980). On appeal, McDermott focuses its argument on only pain
and suffering, arguing that there is no evidence that Barto’s pain will return
now that he has had surgery. McDermott does not argue that Barto will be
able to return to his normal life routines. This is particularly important
because the district court noted that “[t]here is no question he’s going to
continue to need to be followed and will have some rather significant
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permanent restrictions, as has been testified to by Dr. Munshi, with residual
pain.” Further, the district court’s future general damages award specifically
contemplated, in part, Barto’s “permanent restriction of normal living—
normal life activities and so forth.” And Barto presented evidence that his life
activities would be limited. He testified that he could no longer do things he
enjoyed, such as “jogging, lifting weights, baseball, basketball, a lot of sports,”
“yard work,” “fix[ing] on my car,” and “[p]lay[ing] with my kids.” And Dr.
Munshi testified that, even if the surgery was completely successful, he
expected that Barto would indefinitely need to avoid “[a]nything that puts a lot
of stress on his back.”
At oral argument, McDermott maintained that Barto produced
insufficient evidence of the impact on his normal life routines. Specifically,
McDermott argued that a seaman’s own uncorroborated, self-serving
testimony is not enough to prove this impact. This argument fails for three
reasons. First, McDermott did not raise this argument in its appellate brief,
so it is waived. E.g., Am. Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319, 325 n.3 (5th
Cir. 2001). Second, Barto’s testimony was corroborated: Dr. Munshi testified
that, even after the surgery, Barto’s recreational activities would likely be
restricted. Third, even if Barto’s testimony were uncorroborated, the mere fact
that testimony is uncorroborated and self-serving does not automatically mean
that a factfinder is prohibited from crediting it. See, e.g., Curry v. Fluor
Drilling Servs., Inc., 715 F.2d 893, 895 (5th Cir. 1983) (rejecting defendant’s
complaint that district court credited plaintiff’s self-serving and
uncorroborated testimony). 2
2 We note that McDermott has not raised an excessiveness challenge to the component
of future general damages that compensates Barto for the impact on his normal life routines.
We therefore express no opinion on whether the award was excessive.
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McDermott next argues that the future general damages award violates
our maximum recovery rule. “This judge-made rule essentially provides that
we will decline to reduce damages where the amount awarded is not
disproportionate to at least one factually similar case from the relevant
jurisdiction.” Lebron, 279 F.3d at 326 (quoting Douglass v. Delta Air Lines,
Inc., 897 F.2d 1336, 1344 (5th Cir. 1990)) (internal quotation mark omitted).
McDermott has not demonstrated that the rule is applicable here
because it has not pointed to a damages award in a “factually similar case from
the relevant jurisdiction.” Id. In particular, in the case that McDermott offers
as a comparator, the court awarded “$50,000 for future physical and mental
pain and suffering.” Aycock v. Ensco Offshore Co., 833 So.2d 1246, 1248 (La.
Ct. App. 2002). Nothing indicates that this award accounted for the “impact
on [the plaintiff’s] normal life routines.” Crador, 625 F.2d at 1230. In contrast,
the $400,000 award here explicitly accounted for the impact on Barto’s
everyday life. Thus, McDermott has failed to advance a suitable comparator
for Barto’s future general damages award, so the maximum recovery rule does
not even come into play. See Lebron, 279 F.3d at 326 (noting that the
maximum recovery rule “‘does not become operative unless the award exceeds
133% of the highest previous recovery in the [relevant jurisdiction]’ for a
factually similar case” (quoting Douglass, 897 F.2d at 1344 n.14) (alteration in
original)).
D. Future Lost Wages
McDermott’s final argument is that the district court erred by
calculating Barto’s lost wages according to an above-average work-life
expectancy. A damages award for future lost wages should generally be based
upon a seaman’s work-life expectancy, meaning “the average number of years
that a person of a certain age will both live and work.” Madore v. Ingram Tank
Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). “Such an average is not
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conclusive. It may be shown by evidence that a particular person, by virtue of
his health or occupation or other factors, is likely to live and work a longer, or
shorter, period than the average.” Id. “Absent such evidence, however,
computations should be based on the statistical average.” Id.
Here, the district court noted that expert economists provided wage loss
estimates for work-life expectancies of age 55 to “age 67, which is the Social
Security requirement age for Mr. Barto.” The district court then said, “What
I’m going to do is award something in the middle. I think that’s a reasonable
estimation of his loss of future earning capacity.” Accordingly, the district
court awarded Barto $300,000 for future lost wages. McDermott argues that
the district court erred by relying upon an above-average work-life expectancy.
Barto’s expert economist provided a range of estimates for Barto’s future
lost wages for two different retirement ages: 55.8 and 67. The age of 55.8 was
selected based on a table of statistical work-life expectancies that had been
prepared by other economists. In contrast, the age of 67 was selected because
it is Barto’s “full retirement age, as determined by the Social Security
Administration.” McDermott’s expert economist provided a different range of
estimates based on a retirement age of 58.2, which its expert selected based on
a work-life expectancy table from the U.S. Department of Labor’s Bureau of
Labor Statistics.
Barto’s economist did not provide any reason to believe that Barto would
continue to work past his statistical work-life expectancy. The only relevant
evidence Barto presented at trial was his testimony that he plans to work “[a]s
long as I can retire. Whatever the retirement age is.” This scant evidence was
not enough to show that Barto “by virtue of his health or occupation or other
factors, is likely to live and work a longer, or shorter, period than the average.”
Madore, 732 F.2d at 478. For one thing, Barto did not specifically testify that
he planned to work until age 67. And nothing indicates that Barto knew that
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this was the Social Security retirement age. Moreover, even if the district court
believed that Barto wanted to work until age 67, wanting to work until age 67
is not the only or even the most significant factor in determining whether
someone actually will work until age 67. As we have previously pointed out,
an employee “might have become disabled before [the Social Security
retirement age] as a result of illness or some other misadventure.” Id. Or the
employee “might have died before then.” Id. Certainly Barto presented no
evidence that such events were particularly unlikely given his health or other
factors. Barto therefore did not successfully rebut the presumption that the
average work-life expectancy should apply.
McDermott asks us to render judgment, reducing the future lost wages
award from $300,000 to $209,533. The district court explicitly credited the
vocational expert’s opinion that Barto could still work as an unarmed security
guard. Barto’s own expert economist determined that his net future lost wages
would be $209,533 if he worked as an unarmed security guard and retired at
age 55.8. We therefore find it appropriate to render judgment in the amount
of $209,533 for future lost wages.
Barto contended at oral argument that we should instead remand for the
district court to determine future lost wages based on a retirement age of 58.2,
the age selected by McDermott’s expert economist. This age is about 2.5 years
longer than the statistical work-life expectancy selected by Barto’s expert
economist. But at trial, Barto failed to provide an expert opinion on future lost
wages assuming a retirement age of 58.2. “It is a basic concept of damages
that they must be proved by the party seeking them.” Servicios-Expoarma, C.A.
v Indus. Mar. Carriers, Inc., 135 F.3d 984, 995 (5th Cir. 1998). Barto should
have presented a revised expert opinion at trial if he intended to argue that
McDermott’s slightly higher work-life expectancy should apply. We decline to
remand to give Barto a second chance to prove future lost wages.
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E. Cure
Shore’s sole argument on appeal is that Barto did not prove that the
lumbar surgery was intended to improve his physical condition, so the
surgery’s cost was not available as cure. This question of fact is reviewed for
clear error. Becker, 586 F.3d at 365. Moreover, “when there are ambiguities
or doubts [as to a seaman’s right to receive maintenance and cure], they are to
be resolved in favor of the seaman.” Johnson v. Marlin Drilling Co., 893 F.2d
77, 79 (5th Cir. 1990) (quoting Vaughan v. Atkinson, 369 U.S. 527, 532 (1962))
(internal quotation marks omitted) (alteration in original).
“Cure involves the payment of therapeutic, medical, and hospital
expenses not otherwise furnished to the seaman . . . until the point of
‘maximum cure.’” Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir.
1979). Maximum cure occurs “when it appears probable that further treatment
will result in no betterment of the seaman’s condition.” Id. “Thus, where it
appears that the seaman’s condition is incurable, or that future treatment will
merely relieve pain and suffering but not otherwise improve the seaman’s
physical condition, it is proper to declare that the point of maximum cure has
been achieved.” Id. It logically follows that, “when a particular medical
procedure is merely palliative in nature or serves only to relieve pain and
suffering, no duty to provide payments for cure exists.” Johnston v. Tidewater
Marine Serv., No. 96-30595, 116 F.3d 478, 1997 WL 256881, at *2 (5th Cir.
Apr. 23, 1997) (per curiam) (unpublished table opinion). For example, if a
seaman’s epilepsy is caused by scarring in his brain, medicine for “[c]ontrol of
seizures is not a cure, for the precipitative factor, the scarring, remains.”
Stewart v. Waterman S.S. Corp., 288 F. Supp. 629, 633–35 (E.D. La. 1968),
aff’d, 409 F.2d 1045 (5th Cir. 1969) (per curiam), cited with approval in Pelotto,
604 F.2d at 400.
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Here, Dr. Munshi testified that the purpose of the surgery was to remove
pressure from the nerve sac, which caused at least some of Barto’s pain. The
removal of pressure from the nerve sac would thereby better Barto’s physical
condition by curing the root cause of his pain rather than merely correcting the
symptom (pain). The surgery was therefore curative rather than merely
palliative in nature. The surgery also corrected a physical abnormality that
existed in Barto’s body (pressure on the nerve sac) and thereby bettered his
physical condition by restoring it to a normal, healthy condition. The district
court therefore did not clearly err by requiring Shore to pay for the surgery as
cure, particularly given that any doubts about cure “are to be resolved in favor
of the seaman,” Johnson, 893 F.2d at 79.
CONCLUSION
As to the award of future lost wages, we REVERSE and RENDER
judgment that Barto is entitled to $209,533.00 for future lost wages against
McDermott. In all other respects, we AFFIRM the district court’s judgment.
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