Andrew T. Vo, Individually and D/B/A Larry Vo, Viet Le, Tam Van Le and Vo-Le, Inc. v. Ho Kim Doan

ACCEPTED
14-14-00994-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/10/2015 10:25:03 PM
CHRISTOPHER PRINE
CLERK

NO. 14-14-00994-CV

IN THE COURT OF APPEALS FILED IN
14th COURT OF APPEALS
FOR THE FOURTEENTH JUDICIAL DISTRICT OFHOUSTON,
TEXAS TEXAS
8/10/2015 10:25:03 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk

ANDREW T. VO, INDIVIDUALLY AND D/B/A LARRY VO,
VIET LE, TAM VAN LE AND VO-LE, INC., Appellant

V.

HO KIM DOAN, Appellee

ON APPEAL FROM THE 129th JUDICIAL DISTRICT COURT
HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2007-19358
The Honorable Michael Gomez Presiding

ORIGINAL BRIEF ON BEHALF OF APPELLANTS,
ANDREW T. VO, INDIVIDUALLY AND D/B/A LARRY VO,
VIET LE, TAM VAN LE AND VO-LE, INC.

ORAL ARGUMENT REQUESTED

Marguerite K. Kingsmill (Texas Bar No. 00788902)
Christy R. Bergeron (Texas Bar No. 24044582)
Thomas P. Henican (Texas Bar No. 24075926)
KINGSMILL RIESS, L.L.C.
201 St. Charles Avenue, Suite 3300
New Orleans, Louisiana 70170-3300
Attorneys for Appellants,
Andrew T. Vo d/b/a Larry Vo, Andrew T. Vo,
Viet Le, Tam Van Le and Vo-Le Inc.

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 IDENTITY OF PARTIES AND COUNSEL

Appellants / Defendants:

Andrew T. Vo d/b/a Larry Vo, Viet Le, Tam Van Le, Vo-Le, Inc.

Counsel for Appellants / Defendants

Marguerite K. Kingsmill (Texas Bar No. 00788902)
Christy R. Bergeron (Texas Bar No. 24044582)
Thomas P. Henican (Texas Bar No. 24075926)
KINGSMILL RIESS, L.L.C.
201 St. Charles Avenue, Suite 3300
New Orleans, Louisiana 70170-3300

Appellee / Plaintiff

Ho Kim Doan (Deceased)

Counsel for Appellee / Plaintiff

Mark T. Murray Robert S. Kwok
(Texas Bar No. 14724810) (Texas Bar No. 00789430)
Stevenson & Murray William W. Hoke
24 Greenway Plaza, Suite 750 (Texas Bar No. 24046086)
Houston, Texas 77046 Robert Kwok & Associates, L.L.P.
6588 Corporate Drive, Suite 300
Houston, Texas 77036

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 TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................5
STATEMENT OF THE CASE ...............................................................................6
REQUEST FOR ORAL ARGUMENT..................................................................8
ISSUES PRESENTED .............................................................................................9
STATEMENT OF FACTS ....................................................................................11
Procedural and Factual Background.............................................................................. 11
Facts on the accident, including additional evidence that Plaintiff sustained no
injuries while in service of the vessel. ...................................................................16
SUMMARY OF THE ARGUMENT ...................................................................21
ARGUMENT ..........................................................................................................25
1. The Order reinstating the jury verdict and Final Judgment are
improper and procedurally defective because they were rendered in favor of
a deceased plaintiff, in response to motions filed by his former counsel,
without proper authority and without proper substitution of any authorized
party to prosecute this case, in accordance with Rule 151 of the Texas Rules
of Civil Procedure and Texas probate law. ......................................................25
2. It was erroneous for the trial court to reinstate a jury verdict and
enter judgment based on that verdict in favor of a deceased plaintiff, who
previously moved to set aside the same jury verdict approximately five
years earlier, solely because Plaintiff had subsequently died. In addition,
Plaintiff’s motions to reinstate the jury verdict and enter judgment were
untimely and waived...........................................................................................28
3. It was extremely prejudicial and erroneous for the trial court to
reverse its order granting mistrial, and reinstate the jury verdict, which was
set aside at Plaintiff’s request approximately five years earlier, after
substantial further discovery and expenditures by Defendants in defending
this case, in reliance on the mistrial order granted many years ago. ............32
4. The reinstated verdict was unsupported by the legally insufficient
evidence admitted at trial and contrary to the substantial evidence
(presented at trial and discovered after the trial, in reliance on the trial

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 court’s mistrial and revised scheduling orders) establishing that Plaintiff
was not injured while in service of the vessel...................................................33
5. The verdict which the trial court reinstated, awarding attorneys fees
and punitive damages for failure to pay maintenance and cure, are counter
to and inconsistent with the trial court’s post-verdict rulings denying
summary judgment on maintenance and cure. ...............................................37
6. As recognized by Plaintiff’s counsel in seeking the original mistrial,
the verdict which the trial court reinstated is legally defective because it is
internally inconsistent. In addition, the verdict form and charges did not
accurately set forth the proper law with respect to recovery of punitive
damages for failure to pay maintenance and cure and the jury’s findings are
internally inconsistent. .......................................................................................38
7. It was error for the trial court, in its Final Judgment and at the
request of Plaintiff’s counsel, to selectively enter judgment on certain of the
jury’s findings, as set forth in its verdict, while excluding other findings of
the jury’s verdict.................................................................................................42
8. Alternatively, the damages by the jury in the reinstated verdict are
excessive and/or unsupported and Plaintiff is not entitled to interest on the
amounts awarded in the reinstated jury verdict or, if entitled to any interest,
the interest should not accrue between the time mistrial was ordered and
Final Judgment. ..................................................................................................43
PRAYER FOR RELIEF........................................................................................45
CERTIFICATE OF SERVICE ............................................................................47
CERTIFICATE OF COMPLIANCE ..................................................................47
APPENDIX .............................................................................................................48

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 INDEX OF AUTHORITIES

Cases
In re Baylor Medical Center, 280 S.W. 3rd 277 (Tex. 2008) ............................ 29, 30
Jack v. Holiday World of Houston, 262 S.W. 3d 42 (Houston District 2008) ........29
Palmer v. Coble Wall Trust Co., 851 S.W. 2d 178 (Tex. 1992)..............................26
Rodriguez v. State, 850 S.W.2d 516, 520 ......................................................... 29, 30
State v. Meyer, 953 S.W.2d 822 (Tex. App. – Corpus Christi 1997) ......................28
Other Authorities
Section 32.005 of the Estate Code ...........................................................................26
Sections 32.001 and 32.002 .....................................................................................26
Texas Estates Code, Section 31.001 ........................................................................26
Texas Government Code, Section 25.003(e) ...........................................................25
Texas probate law ......................................................................................... 9, 25, 26
Rules
Rule 151 of the Texas Rules of Civil Procedure .......................................... 9, 25, 26
Rule 152 of the Texas Rules of Civil Procedure .....................................................15
Rule 156 of the Texas Rules of Civil Procedure .....................................................30
Rule 39 of the Texas Rules of Appellate Procedure ..................................................8

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 STATEMENT OF THE CASE
This appeal is from a reinstatement of a jury verdict, in a maritime personal

injury case, approximately five years after the trial court set aside that same verdict

in response to a motion for mistrial on behalf of Plaintiff. The alleged accident

occurred in July, 2006, and the original Petition was filed on March 28, 2007 in the

129th Judicial District Court of Harris County, Texas (CR 5). The case was tried

to a jury in September, 2009, with the Hon. Michael Gomez presiding (CR 97-

119). During the trial, counsel for Plaintiff moved for mistrial based on alleged

improper statements made/elicited by prior counsel for Defendants. On September

24, 2009, the jury rendered a verdict, awarding to Plaintiff a total of $134,531.40,

consisting of $21,480.00 in maintenance, $51,551.40 in cure, $4,000 in attorneys

for failure to pay maintenance and cure, and $57,500.00 in punitive damages (CR

105-119). However, the jury also found no negligence by the M/V MR. Larry Vo

or its agents, employees, representatives or servants (CR 105, Jury Question No.

1); that no unseaworthiness of the vessel was a cause of Plaintiff’s injuries (CR

107, Jury Question No. 3); and awarded no damages for negligence or

unseaworthiness, including no medical expenses, past or future, for Plaintiff’s

alleged injuries (CR 108-9, Jury Question No. 4).

Plaintiff was dissatisfied with the verdict, and recognized that it was

internally inconsistent and defective, and therefore re-urged the motion for mistrial

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he had urged during the trial, which motion was granted by the trial court and the

verdict set aside on October 20, 2009 (CR 88). After the mistrial order, a new

scheduling order was entered by the trial court, which included reopening of

discovery.

On September 1, 2012, plaintiff died, for reasons unrelated to his injury

claims in this case (CR 139-142). On September 13, 2012, former counsel for

Plaintiff filed a Motion To Enter Final Judgment (CR 91) and Motion To

Reconsider and Withdraw Order of Mistrial (CR 121), without informing the trial

court that Plaintiff had died almost two weeks earlier, and without authorization of

any party to file these motions (as counsels’ former client was deceased) and

without substitution of any proper party to prosecute Plaintiff’s claims. On August

13, 2014, former counsel for Plaintiff filed an Amended Motion To Reconsider and

Withdraw Order of Mistrial (CR 13) and Amended Motion To Enter Final

Judgment (CR 139), again without substitution of any proper party to prosecute

Plaintiff’s claims. Notwithstanding that no proper party had ever been substituted

to file these motions or prosecute Plaintiff’s claims, on September 16, 2014, the

trial court ordered that the order of mistrial, granted at the request of Plaintiff

almost five years earlier, be withdrawn and set aside: the verdict rendered on or

about September 24, 2009 be reinstated and final judgment be entered (CR 188).

On the same date, September 16, 2014, the trial court entered Final Judgment in

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favor of Plaintiff and against Defendants, awarding $134,531.40, plus costs,

mediation expenses and interest permitted by law (CR 189-92). In the Final

Judgement, the trial court, at the request of Plaintiff’s counsel and over

Defendants’ objection, selectively entered judgment on certain of the jury’s

findings, as set forth in its verdict, while excluding other portions of the verdict

(CR 189-92). On November 17, 2014, the trial court denied Defendants’ Motion

For Judgment Notwithstanding the Verdict or For New Trial (CR 410). This

appeal followed (CR 417).

REQUEST FOR ORAL ARGUMENT
In accordance with Rule 39 of the Texas Rules of Appellate Procedure,

Appellants respectfully request oral argument in this case. This case presents

important issues of proper substitution of parties, the propriety and prejudice to

defendants of reinstatement of a jury verdict, which was set aside at the request of

Plaintiff and then reinstated some five years later, solely because of his death, in

addition to issues regarding sufficiency of evidence to support such verdict.

Counsel for Appellants is of the opinion that oral argument will serve to emphasize

and clarify the issues, and benefit this Honorable Court by providing the

opportunity to question counsel for their input on these issues.

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 ISSUES PRESENTED
1. The Order reinstating the jury verdict and Final Judgment are improper and

procedurally defective because they were rendered in favor of a deceased

plaintiff, in response to motions filed by his former counsel, without proper

authority and without proper substitution of any authorized party to

prosecute this case, in accordance with Rule 151 of the Texas Rules of Civil

Procedure and Texas probate law.

2. It was erroneous for the trial court to reinstate a jury verdict and enter

judgment based on that verdict, in favor of a deceased plaintiff, who

previously moved to set aside the same jury verdict approximately five years

earlier, solely because Plaintiff had subsequently died. In addition,

Plaintiff’s motions to reinstate the jury verdict and enter judgment were

untimely and waived.

3. It was extremely prejudicial and erroneous for the trial court to reverse its

order granting mistrial, and reinstate the jury verdict, which was set aside at

Plaintiff’s request approximately five years earlier, after substantial further

discovery and expenditures by Defendants in defending this case, in reliance

on the mistrial order granted many years ago.

4. The reinstated verdict was unsupported by the legally insufficient evidence

admitted at trial and contrary to the substantial evidence (presented at trial

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 and discovered after the trial, in reliance on the trial court’s mistrial and

revised scheduling orders) establishing that Plaintiff was not injured while in

service of the vessel.

5. The verdict which the trial court reinstated, awarding attorneys fees and

punitive damages for failure to pay maintenance and cure, are counter to and

inconsistent with the trial court’s post-verdict rulings denying summary

judgment on maintenance and cure.

6. As recognized by Plaintiff’s counsel in seeking the original mistrial, the

verdict which the trial court reinstated is legally defective because the jury’s

findings are internally inconsistent. In addition, the verdict form and

charges did not accurately set forth the proper law with respect to recovery

of punitive damages for failure to pay maintenance and cure and the jury’s

findings are internally inconsistent.

7. It was error for the trial court, in its Final Judgment and at the request of

Plaintiff’s counsel, to selectively enter judgment on certain of the jury’s

findings, as set forth in its verdict, while excluding other findings of the

jury’s verdict.

8. Alternatively, the damages awarded by the jury in the reinstated verdict are

excessive and/or unsupported and Plaintiff is not entitled to interest on the

amounts awarded in the reinstated jury verdict or, if entitled to any interest,

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 the interest should not accrue between the time mistrial was ordered and

Final Judgment.

STATEMENT OF FACTS

Procedural and Factual Background
This lawsuit arises out of injuries alleged to have been sustained by plaintiff,

Ho Kim Doan (“Plaintiff”), while working onboard the Defendants’ vessel, the

M/V MR. LARRY VO (“M/V Larry Vo”), in July, 2006 (CR 5). The Petition was

filed on March 28, 2007 (CR 5). Following amended pleadings, discovery and

motion practice, the case proceeded to trial, beginning on September 22, 2009 (CR

5-34, 41, 82, 188-92). During the three-day trial, Plaintiff’s counsel moved for

mistrial based on alleged prejudicial statements made and/or testimony elicited by

Defendants’ prior counsel. During the trial, the trial court did not grant a mistrial,

but instead let the case go to verdict (CR 88). In the verdict, the jury found no

negligence by the M/V Larry Vo or its agents, employees, representatives or

servants (CR 105, Jury Question No. 1); that no unseaworthiness of the vessel was

a cause of Plaintiff’s injuries (CR 107, Jury Question No. 3); and awarded no

damages for negligence or unseaworthiness, including no medical expenses, past

or future, for Plaintiff’s alleged injuries (CR 108, Jury Question No. 4). However,

the jury awarded maintenance of $21,480.00 and cure of $51,551.40, for the time

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period July 19, 2006 until July 5, 2008, at which time the jury found Plaintiff had

reached maximum cure (CR 110-14, Jury Question Nos. 5-9). 1

In addition, the jury awarded $4,000.00 in attorneys fees for failure to pay

maintenance and cure (CR 115-16, Jury Question Nos. 10 and 11). Further, the

jury awarded an additional $57,500.00 in punitive damages, almost three times the

amount of maintenance and cure awarded, although there was no jury charge on

punitive damages and the jury interrogatories did not accurately set forth prevailing

law (CR 117, Jury Question No. 12). Further, the Jury Charge (CR 97-104) did not

address punitive damages and, along with Jury Question No. 12, were not in

accordance with prevailing maritime law on recovery of punitive damages for

failure to pay maintenance and cure. Instead, Jury Question No. 12 is framed in

terms of punitive damages based on general maritime law or unseaworthiness and

is clearly defective and unsupported by law (CR 117).

Plaintiff was dissatisfied with the verdict and his counsel re-urged the

motion for mistrial, which was granted by the trial court, by order of October 20,

2009 (CR 88). Thus, Plaintiff was able to get “one bite at the apple” by going to

verdict and, after he was dissatisfied with the verdict, another “bite at the apple” by

1
As amplified below, these findings are directly contrary to the overwhelming evidence,
including Plaintiff’s own admissions, establishing that Plaintiff was not injured while in service
of the vessel. Indeed, the trial court specifically denied summary judgment on maintenance and
cure several months after the jury verdict was set aside.
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having the verdict set aside and the case re-set for trial on the trial docket.

Thereafter, the trial court reopened discovery and other pre-trial deadlines

were established. The parties conducted motion practice and additional discovery

over the course of the next twenty-seven (27) months, during which time the case

was re-set for trial and continued, more than once. On December 11, 2009 and

January 29, 2010, after the jury verdict was set aside and notwithstanding that the

trial court had denied Plaintiff’s pre-trial summary judgment motion (CR 41),

which specifically included maintenance and cure, Plaintiff filed additional

motions for summary judgment, which again included maintenance and cure. By

order of May 4, 2010, inter alia, the trial court, after the jury verdict and declaring

mistrial, denied Plaintiff’s motions seeking summary judgment as to maintenance

and cure, finding that there were disputed material facts as to whether Plaintiff was

entitled to any maintenance or cure, much less attorneys fees or punitive damages

for alleged failure to pay maintenance and cure.

In subsequent discovery authorized permitted by the trial court after it

granted Plaintiff’s mistrial motion, Defendants obtained significant evidence

further establishing that Plaintiff sustained no injuries in the alleged accident

aboard the M/V Larry Vo (CR 249-376). Specifically, Defendants discovered that

on October 17, 2006, only about three (3) months after the alleged accident in suit,

Plaintiff was involved in a vehicular accident, from which he claimed, inter alia,

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cervical injuries. Thereafter, on July 26, 2008, Doan was involved in another

vehicular accident, from which he claimed neck and back injuries. Id. At trial,

Plaintiff relied upon the testimony of Dr. James Key (“Dr. Key”), treating

orthopaedic surgeon. Plaintiff never disclosed these other accidents to Dr. Key or

other health care professionals who treated him for the vehicular injuries. As of

November 30, 2006, within a few months of the accident, Plaintiff’s treating

chiropractor related all of his cervical symptoms and injuries to the October 17,

2006 vehicular accident. Moreover, Plaintiff specifically represented to Richard

Hoang, his treating chiropractor for the July 26, 2008 accident, that he had no prior

cervical or other injuries. Id.

On September 1, 2012, plaintiff died, for reasons unrelated to his injury

claims in this case (CR 139-142). On September 13, 2012, counsel for Plaintiff

filed a Motion To Enter Final Judgment (CR 91) and Motion To Reconsider and

Withdraw Order of Mistrial (CR 121) (collectively, “these motions”), without

informing the trial court that Plaintiff had died almost two weeks earlier, and

without authorization of any party to file these motions (as counsels’ former client

was deceased) and without substitution of any proper party to prosecute Plaintiff’s

claims. On August 13, 2014, counsel for Plaintiff filed an Amended Motion To

Reconsider and Withdraw Order of Mistrial and Amended Motion To Enter Final

Judgment, again without substitution of any proper party to prosecute Plaintiff’s

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claims (CR 134-166). Based on these clear defects in the motions filed by

Plaintiff’s former counsel, Defendants even filed an Application For Writ of Scire

Facias, pursuant to Rule 152 of the Texas Rules of Civil Procedure, requesting that

the Clerk of Court issue a writ requiring the heirs, administrator or executor of

decedent, Ho Kim Doan, to appear and prosecute this lawsuit. Without

explanation, the trial court denied Defendants’ Application for Writ of Scire

Facias, “at this time” (CR 411).

Notwithstanding that no proper party had ever been substituted to file these

motions or prosecute Plaintiff’s claims, on September 16, 2014, the trial court

ordered that the order of mistrial, granted at the request of Plaintiff almost five

years earlier, be withdrawn and set aside, the verdict rendered on or about

September 24, 2009, be reinstated and final judgment be entered (CR 188). On the

same date, September 16, 2014, the trial court entered Final Judgment in favor of

Plaintiff and against Defendants, awarding $134,531.40 (the same total principal

amount of the original jury verdict, plus costs, mediation expenses and interest

permitted by law (CR 189-92). The reinstatement of the jury verdict and Final

Judgment were issued by the trial court in response to completely procedurally

defective and improper motions filed by Plaintiff’s former counsel, without any

authorization, proper authority or substitution of a proper party to prosecute

Plaintiff’s claims. At no time while this case was handled by the trial court was

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any proper substitution ever made. Further, in the Final Judgement, the trial court,

at the request of Plaintiff’s counsel and over Defendants’ strenuous objection,

selectively entered judgment on certain of the jury’s findings, as set forth in its

verdict, while excluding other portions of the verdict (CR 189-92). On November

17, 2014, the trial court denied Defendants’ Motion For Judgment Notwithstanding

the Verdict or For New Trial (CR 410). This appeal followed (CR 417).

Facts on the accident, including additional evidence that Plaintiff
sustained no injuries while in service of the vessel.
This lawsuit arises out of injuries alleged to have been sustained by Plaintiff

while working onboard the Defendants’ vessel, the M/V Larry Vo, on July 14,

2006. 2 On July 7, 2006, Plaintiff approached Tam Le, the captain of the M/V Mr.

Larry Vo, for employment as a crewmember. 3 Although the Plaintiff had prior

work experience as a fisherman with many other vessels, the Plaintiff had no prior

work relationship with the Defendants.4 The shrimp season was opening the

following day (i.e., July 8, 2006),5 and because the Defendants were short one

2
Plaintiff has indicated to medical providers (as shown in their records) and in his
Petitions that the accident occurred on July 19, 2006, but this is not correct. Trial Exhibits 15
and 17; CR 5, 27. Defendants are in the process of requesting supplementation of the appeal
record to include the transcript from the September, 2009 trial and all admitted trial exhibits.
3
See September 23, 2009 trial testimony of Tam Van Le, via admission at trial of
deposition testimony by consent, pp. 69; September 23, 2009 trial testimony of Yen Vo Lu, also
admitted at trial by consent of deposition transcript, testimony pp. 74-5.
4
Id.
5
Trial testimony of Tam Van Le, p. 77, 126.
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crewmember, the Defendants hired the Plaintiff. Soon thereafter, the Defendants’

vessel departed to sea for the first fishing trip of the season. At the time of his

hiring, the Plaintiff did not disclose any pre-existing injuries to the Defendants or

Captain Le. In addition, at trial there were medical records introduced which

included an evaluation form signed by Doan. On this form Doan disclosed an auto

accident as the cause of his injuries, for which he was being treated by Mana in

August 9, 2006, shortly after the alleged boat accident in suit. Plaintiff also denied

ever having surgery (Trial Exhibit 13). Further, Plaintiff’s medical records,

introduced at trial, apparently show that he had multiple surgeries, including four

arthroscopic procedures between June 9, 2005 and August 24, 2006. (Trial Exhibit

15). Plaintiff never disclosed to Defendants that auto accident; the later discovered

vehicular accidents, or any of these purported surgeries.

The incident that is the subject of this lawsuit allegedly occurred on July 14,

2006. That morning, as Captain Le and the crewmembers were reeling in the

shrimp nets, a new rope that was used to pull and hoist the shrimp nets onto the

deck snapped. 6 As a result, the shrimp net and turtlehead fell and ricocheted off

the deck of the vessel and made contact with the Plaintiff.7 The shrimp net and

turtlehead did not strike the Plaintiff directly. When a fellow crew member asked

6
September 23, 2009 trial testimony of Tam Van Le, dated October 5, 2007, p. 77-8.
7
Id.; See also, September 23, 2009 trial testimony from Ngoi Nguyen, pp. 104-116.
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the Plaintiff if he was hurt, the Plaintiff responded, “No.” 8 Following the incident,

the Plaintiff rested for approximately fifteen minutes and resumed work without

any complaints of the alleged injury. He jumped off the boat and went swimming

almost every day after the accident. 9 The Plaintiff never requested that he be taken

back to port, and he never complained of any injuries. 10

The U.S. Coast Guard was not even notified of the incident until July 24,

2006, when the Defendants’ vessel returned to port for repairs to a damaged water

pump. 11 Once the vessel was docked, the Plaintiff was informed his services were

no longer needed on the Defendants’ vessel. Only then did the Plaintiff notify the

Coast Guard.

After the accident, Doan continued to work for 11 straight days without

complaint. The boat came into port twice for repair work between the days of the

accident, July 14, 2006, and July 25, 20006, and Doan did not mention any pains

or injury and continued to work normally. 12 After the accident, Plaintiff dove into

the water and went swimming almost every day after the incident without any sign

of pain or restriction. Once when the boat came into port, Plaintiff used a large

8
September 23, 2009 trial testimony of Tam Van Le, pp. 129-136.
9
Id.; Trial testimony from Ngoi Nguyen, pp. 104-116.
10
Id.
11
Id.
12
Id.
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hose to load some 15,000 gallons of water on to the vessel. September 23, 2009

trial testimony of Ngoi Nguyen, pp. 113-14.

During trial, Hoa Ngoc Vo (“Ms. Vo”) testified that more than one week

after the accident she saw and spoke with Plaintiff when the vessel returned to

Freeport to repair a water pump. She confirmed he did not appear to be injured

and complained of no injuries. “Everything seem to be normal with Doan.” Days

later, after the boat came back to Port Bolivar, Ms. Vo saw Doan again and “he

walked normally” and did not appear to be hurt. Significantly, approximately one

month after the alleged accident, Plaintiff approached Ms. Vo and asked her to hire

him, but she told Doan that they already had enough crew. Hoa Vo further

testified that about three (3) months later (approximately four (4) months after the

accident), she saw Plaintiff at My Quang Supermarket and heard him say, “I’m

not injured. I just want to have some money.” September 23, 2009 Trial

Transcript of Hoa Ngoc Vo trial testimony, pp. 158-167. In addition, Plaintiff

testified at trial that since the alleged incident he has engaged in selling fish and

shrimp to neighbors. In connection with this work, he testified that he loads up to

70 pounds of fish and shrimp onto his truck. September 23, 2009 Trial Transcript,

pp. 42-44.

Thus, the reinstated verdict was unsupported by the legally insufficient

evidence admitted at trial and contrary to the substantial evidence (presented at

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trial and discovered after the trial, in reliance on the trial court’s mistrial and

revised scheduling orders) establishing that Plaintiff was not injured while in

service of the vessel.

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 SUMMARY OF THE ARGUMENT
This case arises out of an alleged maritime injury in July, 2006. The case

was tried to a jury in September, 2009. The jury reached a verdict, awarding to

Plaintiff a total of $134,531.40, consisting of maintenance and cure, attorneys fees

for failure to pay maintenance and cure and punitive damages. The jury found no

negligence by Defendants; that no unseaworthiness of the vessel caused Plaintiff

any injuries and awarded no damages for negligence or unseaworthiness, including

no medical expenses, past or future, for Plaintiff’s alleged injuries.

Plaintiff was dissatisfied with the verdict, so he re-urged a motion for

mistrial, based on purported improper statements/elicited testimony by prior

counsel for Defendants during the trial. Plaintiff, through his counsel, asserted that

the jury verdict was internally inconsistent and defective as a reason that mistrial

should be granted. In October, 2009, the trial court granted Plaintiff’s motion and

ordered a mistrial, in addition to re-setting discovery and other pre-trial deadlines.

Defendants conducted substantial additional discovery, incurring many thousands

of dollars in attorneys fees and costs, in reliance on the mistrial order. This

discovery produced substantial additional evidence that Plaintiff was not injured

while in service of the vessel and therefore was not entitled maintenance and cure,

much less penalties or punitive damages.

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 On September 1, 2012, Plaintiff died. Approximately twelve days after

Plaintiff’s death, his former counsel filed motions seeking withdrawal of the

mistrial order; reinstatement of the jury verdict and entry of judgment against

Defendants. In these motions, former counsel for Plaintiff did not disclose to the

trial court that Plaintiff had died. In addition, former counsel for Plaintiff filed

these motions without proper authority and without properly substituting any

proper party to prosecute Plaintiff’s claims. During the entire proceedings in the

trial court after Plaintiff’s death, former counsel for Plaintiff never properly

substituted any party to prosecute Plaintiff’s claims and had no proper authority for

any of the post-death filings on behalf of Plaintiff. Nevertheless, on September 16,

2014, almost five years after granting Plaintiff’s request for mistrial and setting

aside the jury verdict, the trial court ordered that the mistrial order be withdrawn

and reinstated the same jury verdict, which Plaintiff’s counsel had previously was

internally inconsistent and defective. Contemporaneously, the trial court entered

Final Judgement against Defendants based on this jury verdict. These actions by

the trial court were erroneous, as they were based solely on the fact that Plaintiff

had died and were taken in response to motions filed without authority or proper

substitution.

Defendants respectfully submit that it was reversible error for the trial court

to consider the merits of the motions filed by Plaintiff’s former counsel after

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Plaintiff’s death with no authority; withdraw the mistrial order granted at

Plaintiff’s request almost five years earlier; reinstate the jury verdict and enter

judgment against Defendants based on an internally inconsistent and defective

verdict, which Plaintiff’s own counsel recognized in moving for mistrial. In

addition, the verdict which the trial court reinstated did not accurately set forth the

proper law with respect to recovery of punitive damages for failure to pay

maintenance and cure. The motions seeking to set aside the mistrial order were

untimely and/or waived by Plaintiff in moving for and obtaining an order of

mistrial. It was extremely prejudicial and reversible error for the trial court to

reinstate the jury verdict almost five years after ordering mistrial, particularly after

Defendants had spent many thousands of dollars in attorneys fees and costs in

discovery and other litigation expenses, in reliance on the trial court’s mistrial

order.

Further, Defendants submit that the reinstated is not only internally

inconsistent and defective, it is unsupported by legally insufficient evidence

presented at trail and contrary to the substantial evidence presented at trial and

discovered after the trial, in reliance on the trial court’s mistrial order, establishing

that Plaintiff was not injured while in service of the vessel. In addition,

reinstatement of the jury verdict is inconsistent with the trial court’s rulings, long

after the jury verdict and order of mistrial, denying summary judgment on

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Defendants’ liability maintenance and cure. Also, it was error for the trial court to

selectively enter, at the request of Plaintiff’s former counsel, judgment against

Defendants on certain of the jury’s findings, while ignoring or excluding other

findings contained in the jury’s verdict. Alternatively, the damages awarded by the

jury in the reinstated verdict are excessive and/or unsupported and Plaintiff is not

entitled to interest on the amounts awarded in the reinstated jury verdict or, if

entitled to any interest, the interest should not accrue until entry of Final Judgment

on September 16, 2014.

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 ARGUMENT

1. The Order reinstating the jury verdict and Final Judgment are
improper and procedurally defective because they were rendered in
favor of a deceased plaintiff, in response to motions filed by his former
counsel, without proper authority and without proper substitution of
any authorized party to prosecute this case, in accordance with Rule 151
of the Texas Rules of Civil Procedure and Texas probate law.
Plaintiff died on September 1, 2012, due to causes unrelated to the claims in

this lawsuit. On September 13, 2012, former counsel for Plaintiff filed a Motion

To Enter Final Judgment (CR 91) and Motion To Reconsider and Withdraw Order

of Mistrial (CR 121), without informing the trial court that Plaintiff had died

almost two weeks earlier, and without authorization of any party to file these

motions (as counsels’ former client was deceased) or substitution of any proper

party to prosecute Plaintiff’s claims. On August 13, 2014, former counsel for

Plaintiff filed an Amended Motion To Reconsider and Withdraw Order of Mistrial

and Amended Motion To Enter Final Judgment, again without substitution of any

proper party to prosecute Plaintiff’s claims. During the entire proceedings in the

trial court, there was no party substituted to pursue these claims, as required

pursuant to Rule 151 of the Texas Rules of Civil Procedure and Texas probate law.

Texas Government Code, Section 25.003(e) provides, in pertinent part, at

subsections (e) and (f) as follows: “(e) In a county that has a statutory probate

court, a statutory probate court is the only county court created by statute with

probate jurisdiction. (f) A statutory county court does not have the jurisdiction of a

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statutory probate court granted statutory probate courts by the Texas Probate

Code.” Further, the Texas Estates Code, which replaced the Texas Probate Code,

effective January 1, 2014, at Sections 32.001 and 32.002, vests original and

exclusive jurisdiction of “probate proceedings” in statutory probate courts in

counties in which there is a statutory probate court. See also, e.g., Palmer v. Coble

Wall Trust Co., 851 S.W. 2d 178 (Tex. 1992). Pursuant to Section 32.005 of the

Estate Code, in a county in which there is a statutory probate court the statutory

probate court has exclusive jurisdiction of all probate proceedings, regardless of

whether contested on uncontested. Harris County is a county in which there is a

statutory probate court. “Probate proceeding,” as defined in the Texas Estates

Code, includes, inter alia: an heirship determination, the issuance of letters of

administration, an action regarding an estate administration and any other matter

related to the settlement, partition or distribution of an estate. Texas Estates Code,

Section 31.001.

Rule 151 of the Texas Rules of Civil Procedure and Texas probate law

specifically require timely substitution of a proper party to prosecute a lawsuit

when a plaintiff dies. No such proper substitution was ever effected during the

entire proceedings in the trial court, notwithstanding that Plaintiff died on

September 1, 2012, and Defendants filed their Notice of Appeal on December 12,

2014. All or virtually all of the filings in the trial court on behalf of Plaintiff, over

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the two-year plus period after his death and including the motions which resulted

in reinstatement of a five-year-old jury verdict which had been mistried at

Plaintiff’s request, were procedurally improper and defective. These filings were

made without proper authority of Plaintiff’s former counsel and without proper

substitution of any party. In fact, as later recognized by Plaintiff’s former counsel,

the trial court did not even have the jurisdiction to substitute any party as

administrator of the Estate of Ho Kim Doan, as that power lies exclusively with the

Texas probate courts. Thus, because the motions were filed without authority and

without any proper substitution of any party to file them or otherwise prosecute the

case in the trial court, it was error for the trial court to consider, much less grant,

the motions, reinstate the mistrial order five years later and enter Final Judgment

against Defendants. Reversal of the order reinstating the jury verdict and Final

Judgment against Defendants is mandated for that reason alone, without even

considering the numerous other problems with reinstating a jury verdict which was

set aside five years earlier, at Plaintiff’s request, solely because Plaintiff died for

reasons unrelated to his claims herein.

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2. It was erroneous for the trial court to reinstate a jury verdict and enter
judgment based on that verdict in favor of a deceased plaintiff, who
previously moved to set aside the same jury verdict approximately five
years earlier, solely because Plaintiff had subsequently died. In addition,
Plaintiff’s motions to reinstate the jury verdict and enter judgment were
untimely and waived.
On September 12, 2012, shortly after Plaintiff died on September 1, 2012,

former counsel for Plaintiff filed motions seeking withdrawal of the mistrial order;

reinstatement of the jury verdict and entry of judgment against Defendants. In

those motions (CR 91, 121), former counsel for Plaintiff did not reveal to the trial

court that Plaintiff had died eleven days earlier. That fact was not disclosed by

Plaintiff’s former to the trial court until later. The motions were amended by

Plaintiff’s former counsel, on August 13, 2014, and eventually set for hearing on

September 8, 2014 (CR 134, 139).

In those motions, Plaintiff sought to have the trial court reverse a mistrial

order granted at Plaintiff’s request, years earlier. In State v. Meyer, 953 S.W.2d

822 (Tex. App. – Corpus Christi 1997), the court In Meyer, the court squarely held

that withdrawing an order of mistrial and granting an instructed verdict more than

six months after the jury had been discharged “exceeds the boundaries of judicial

propriety,” and thus, “withdrawing the mistrial order was not a viable option for

the trial court.” In our case, at the urging of Plaintiff’s counsel, the trial court

withdrew and set aside its mistrial order some five years after it was entered at

Plaintiff’s request, and after Defendants incurred significant fees and costs in
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reliance upon the mistrial order. Obviously, if withdrawing an order of mistrial

approximately six months after the jury had been discharged “exceeds the

boundaries of judicial propriety,” withdrawing a similar order of mistrial almost

five years after it was entered is reversible error.

In the motions filed on these issues, Plaintiff’s former counsel relied on Jack

v. Holiday World of Houston, 262 S.W. 3d 42 (Houston District 2008), for the

proposition that the trial court retained jurisdiction to rescind its mistrial order.

However, the Jacks case involved rescission of a mistrial order on the same day it

was granted, and with the consent of all parties. Jacks did not involve a very long

delay between granting a mistrial and rescinding it, during which time discovery,

motion practice and preparation for re-trial was conducted. In addition, Plaintiff’s

counsel cited a criminal case, Rodriguez v. State, 850 S.W.2d 516, 520, and

another case, In re Baylor Medical Center, 280 S.W. 3rd 277 (Tex. 2008), which

involved a new trial order, not a mistrial order. In both of these cases, mistrial or

new trial was reversed promptly after entry of same. In the motions filed on these

issues, Plaintiff’s former counsel relied on one civil case, involving mistrial, Jack

v. Holiday World of Houston, 262 S.W. 3d 42 (Houston District 2008), for the

proposition that the trial court retained jurisdiction to rescind its mistrial order.

However, the Jacks case involved rescission of a mistrial order on the same day it

was granted, and with the consent of all parties. Jacks did not involve a very long

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delay between granting a mistrial and rescinding it, during which time discovery,

motion practice and preparation for re-trial was conducted. In addition, Plaintiff’s

counsel cited a criminal case, Rodriguez v. State, 850 S.W.2d 516, 520, and

another case, In re Baylor Medical Center, 280 S.W. 3rd 277 (Tex. 2008), which

involved a new trial order, not a mistrial order. In both of these cases, mistrial or

new trial was reversed promptly after entry of same.

In addition, for the first time at oral argument on motions which had been

pending for almost two years, former counsel for Plaintiff relied upon Rule 156 of

the Texas Rules of Civil Procedure, which reads as follows:

“When a party in a jury case dies between verdict and judgment, or a

party in a non-jury case dies after the evidence is closed and before

judgment is pronounced, judgment shall be entered as if all parties

were living.”

This rule does not allow reinstatement of a jury verdict based on a plaintiff’s

death in a situation where the jury verdict has been set aside by mistrial. It does not

permit a plaintiff to have a jury verdict set aside and then reinstated five years

later, based solely on his death. In this case, there was no jury verdict in place as

of the time of Plaintiff’s death, because it was set aside via the mistrial order, at the

request for Plaintiff.

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 Further, for these same reasons, Defendants submit that not only were the

motions seeking reinstatement untimely, the right to seek withdrawal and

reinstatement of the jury verdict, and entry of Final Judgment based on that verdict,

were waived. Plaintiff moved for mistrial because he was dissatisfied with the jury

verdict and specifically argued that it was internally inconsistent/defective. Almost

five years later, solely because Plaintiff died, his former counsel moved to reinstate

the internally inconsistent and defective verdict. As detailed below, Defendants

spent many thousands of dollars on discovery and other litigation expenses, in

reliance on the mistrial order which Plaintiff requested. Plaintiff conducted his

own discovery and pursued motion practice, in accordance with the mistrial order

he obtained. Clearly, Plaintiff waived the right to seek withdrawal of the mistrial

order and entry of a jury verdict, which he previously asserted was internally

inconsistent and defective in order to obtain the order of mistrial, and subsequent

entry of Final Judgement based on that verdict. Accordingly, it was reversible

error for the trial court to reinstate the jury verdict and enter Final Judgment

against Defendants.

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3. It was extremely prejudicial and erroneous for the trial court to reverse
its order granting mistrial, and reinstate the jury verdict, which was set
aside at Plaintiff’s request approximately five years earlier, after
substantial further discovery and expenditures by Defendants in
defending this case, in reliance on the mistrial order granted many
years ago.
In specific reliance on the October, 2009 order of mistrial, Defendants

expended more than $43,000 in attorney fees and more than $11,000 in

costs/charges/ expenses relative to defending the case after mistrial was ordered

(CR 251-253). This time included significant discovery pursued by Defendants,

which resulted in obtaining substantial additional evidence establishing that

Plaintiff was not injured while in service to Defendants’ vessel (CR 254-376).

Thus, it was extremely prejudiced to Defendants to grant Plaintiff’s request for

mistrial, reopen discovery and then reinstate the jury verdict after these large

expenditures by Defendants, relying on the mistrial order. Further, the trial court

gave no consideration to the dispositive evidence obtained by Defendants in

reliance on the mistrial order, establishing that Plaintiff had no valid claims for

maintenance and cure, much less for attorneys fees or punitive damages for failure

to pay maintenance and cure. It was error for the trial court to reinstate the jury

verdict five years later, after these expenditures and without even considering the

evidence obtained through these expenditures and in reliance upon the mistrial

order.

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4. The reinstated verdict was unsupported by the legally insufficient
evidence admitted at trial and contrary to the substantial evidence
(presented at trial and discovered after the trial, in reliance on the trial
court’s mistrial and revised scheduling orders) establishing that
Plaintiff was not injured while in service of the vessel.
As summarized in detail in the Statement of Facts above (Appellants’ Brief,

pp. 14-19), there was overwhelming evidence presented at trial, and discovered by

Defendants after trial in reliance on the mistrial order, establishing that Plaintiff

was not injured while in service to Defendants’ vessel, and thus, was not entitled to

maintenance and cure. This evidence included previously undisclosed vehicular

accidents involving Plaintiff, including, inter alia, related claims of neck injury

(the same body part allegedly injured in the accident at issue herein) and

representations by Plaintiff to treating health care professionals that he sustained

no injuries whatsoever prior to these vehicular accidents, which occurred after the

accident in suit. This evidence establishes that Plaintiff was not injured while

employed on the vessel. There was no evidence, or alternatively, insufficient

evidence, establishing Plaintiff’s claims for maintenance and cure, attorneys fees

or punitive damages. At the time of hiring, Plaintiff did not disclose any pre-

existing injuries to the Defendants. At trial, there were medical records introduced

which included an evaluation form signed by Plaintiff. On this form, Plaintiff

disclosed an auto accident as the cause of his injuries for which he was being

treated at Mana MRI, LLC, shortly after the alleged July, 2006 boat accident at

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issue herein. In the same document, Plaintiff denies ever having had surgery (Trial

Exhibit 13). However, Plaintiff’s medical records introduced at trial show that,

apparently, he had multiple surgeries, including four arthroscopic procedures on

November 18, 2003, June 9, 2005 and two in 2006 (Trial Exhibit 15). Plaintiff

never disclosed the auto accident(s), referenced above, or any of these surgeries to

Defendants. The incident that is the subject of this lawsuit occurred in mid-July,

2006. That morning, as Captain Le and the crewmembers were reeling in the

shrimp nets, a new rope that was used to pull and hoist the shrimp nets onto the

deck snapped. 13 As a result, the shrimp net and turtlehead fell and ricocheted off

the deck of the vessel and hit Plaintiff, with little force, on the shoulder. 14 The

shrimp net and turtlehead did not strike the Plaintiff directly. When a fellow crew

member asked the Plaintiff if he was hurt, the Plaintiff responded, “No.” 15

Following the incident, the Plaintiff rested for approximately fifteen minutes and

resumed work without any complaints of the alleged injury. He jumped off the

boat and went swimming almost every day after the accident. 16 The Plaintiff

13
See trial testimony of Yen Vo Lu, Tam Van Le and Ngoi Nguyen, cited above.
14
See trial testimony of Tam Van Le and Ngoi Nguyen.
15
See trial testimony of Tam Van Le, Ngoi Nguyen and Captain Tam Le.
16
Id.
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never requested that he be taken back to port, and he never complained of any

injuries.17

The U.S. Coast Guard was not even notified of the incident until July 24,

2006, when the Defendants’ vessel returned to port for repairs to a damaged water

pump. 18 Once the vessel was docked, the Plaintiff was informed his services were

no longer needed on the Defendants’ vessel. Only then did the Plaintiff notify the

Coast Guard.

After the accident, Doan continued to work for 11 straight days without

complaint. The boat came into port twice for repair work between the days of the

accident, July 14, 2006, and July 25, 20006, and Doan did not mention any pains

or injury and continued to work normally. 19 After the accident, Plaintiff dove into

the water and went swimming almost every day after the incident without any sign

of pain or restriction. Once when the boat came into port, Plaintiff used a large

hose to load some 15,000 gallons of water on to the vessel. Trial Testimony of

Ngoi Nguyen, pp. 112-115.

During trial, Hoa Ngoc Vo (“Ms. Vo” or “Hoa Vo”) testified that more than

one week after the accident she saw and spoke with Plaintiff when the vessel

returned to Freeport to repair a water pump. She confirmed he did not appear to be

17
Id.
18
Id.
19
See trial testimony of Yen Vo Lu, Tam Van Le and Ngoi Nguyen.
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injured and complained of no injuries. “Everything seem to be normal with Doan.”

Days later, after the boat came back to Port Bolivar, Ms. Vo saw Doan again and

“he walked normally” and did not appear to be hurt. Significantly, approximately

one month after the alleged accident, Plaintiff approached Ms. Vo and asked her to

hire him, but she told Doan that they already had enough crew. Hoa Vo further

testified that about three months later (approximately four months after the

accident), she saw Plaintiff at My Quang Supermarket and heard him say, “I’m

not injured. I just want to have some money.” September 23, 2009 Trial

Transcript, pp. 158–167.

In addition, Plaintiff testified at trial that since the alleged incident he

engaged in selling fish and shrimp to neighbors. In connection with this work, he

testified that he loads up to 70 pounds of fish and shrimp onto his truck. Excerpt

from September 23, 2009 Trial Transcript, pp. 42-44. Accordingly, the evidence

adduced at trial is legally and factually insufficient to support the awards of

maintenance and cure, attorneys fees for failure to pay maintenance and cure and

punitive damages. To the contrary, the evidence adduced at trial, and discovered in

reliance the trial court’s mistrial order established that Plaintiff was not injured

while in service of the vessel. Thus, in addition to all of the other reasons

discussed herein, it was error for the trial court to reinstate the jury verdict because

it was unsupported by the legally insufficient evidence presented by Plaintiff at

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trial, particularly given the overwhelming presented and discovered after trial,

establishing that Plaintiff was injured while in service of the vessel, and therefore

entitled to no maintenance or cure, much less attorneys fees or punitive damages.

5. The verdict which the trial court reinstated, awarding attorneys fees
and punitive damages for failure to pay maintenance and cure, are
counter to and inconsistent with the trial court’s post-verdict rulings
denying summary judgment on maintenance and cure.
Following the jury verdict and the Court’s order of mistrial, on December

11, 2009, Plaintiff filed a motion for summary judgment, which again included

maintenance and cure. Thereafter, on or about January 29, 2010, Plaintiff filed

another summary judgment motion solely on the issue of maintenance and cure.

By order of May 4, 2010, the Court denied Plaintiff’s motions seeking summary

judgment as to maintenance and cure, finding material factual issues as to whether

Plaintiff was entitled to maintenance or cure.

Thus, the trial court specifically assessed the evidence, after the trial and

jury verdict, and denied Plaintiff’s motions for summary judgment on maintenance

and cure. During re-opened discovery, Defendants obtained further evidence

establishing that Plaintiff was not injured while in service on the vessel. This

evidence includes two previously undisclosed vehicular accidents and specific

representations by Plaintiff that he sustained no injuries to his neck prior to the

vehicular accidents. Thus, it was clear error for the trial court, after ruling that

there were material factual issues as to Plaintiff’s entitlement to maintenance or
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cure, to later enter judgment on the prior jury verdict. Such a action was

completely inconsistent with the trial court’s prior rulings, before and after the trial

and verdict, denying summary judgment on maintenance on cure. The only new

fact presented by Plaintiff’s former counsel to the trial court, between the time of

denial of the summary judgment motions, post-trial, and reinstatement and the

motion seeking reinstatement of the jury verdict was the fact that Plaintiff had

died. It was erroneous for the trial court to withdraw the mistrial order and enter

Final Judgment, after holding that there were material factual issues as to whether

Plaintiff was entitled to any maintenance or cure, much less attorneys fees or

punitive damages.

6. As recognized by Plaintiff’s counsel in seeking the original mistrial, the
verdict which the trial court reinstated is legally defective because it is
internally inconsistent. In addition, the verdict form and charges did
not accurately set forth the proper law with respect to recovery of
punitive damages for failure to pay maintenance and cure and the
jury’s findings are internally inconsistent.
The verdict which the Court has reinstated is not only unsupported by

evidence at trial and counter to the substantial evidence establishing that he was

not injured while in service of the vessel, but is internally inconsistent and

therefore must be set aside. In the verdict form (CR 385-389), in response to

Question No. 1, the jury specifically found that the negligence of the F/V Larry Vo

did not cause any injuries to Plaintiff (CR 385). Further, in response to Jury

Question No. 3 (CR 387), the jury found that the unseaworthy condition of the
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Larry VO was not a proximate cause of the injuries to Plaintiff. Also, in response

to Question No. 4 (CR 388), the jury answered “0” to each and every question

relating to what sum of money would fairly compensate Plaintiff for his injuries

that resulted from the alleged incident, including the following categories of

damages:

a. Past physical pain and suffering;

b. Future physical pain and suffering, including physical

disability, impairment and inconvenience and the effect of Plaintiff’s

injuries on the normal pursuits and pleasures of his life;

c. Past mental anguish and feelings of economic insecurity caused

by disability;

d. Future mental anguish and feelings of economic insecurity

caused by disability;

e. Income in the past;

f. Impairment of earning capacity or ability in the future,

including impairment in the normal progress in Kim Ho Doan’s

earning capacity due to his physical condition;

g. Medical expenses in the past; and

h. Medical expenses in the future.

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 Accordingly, the award of maintenance and cure is directly and internally

inconsistent with the jury’s findings that Plaintiff sustained no injuries, should be

awarded no damages for pain and suffering (past or future), disability, impairment,

inconvenience, mental anguish (past or future), lost income, lost earning capacity

and incurred no medical expenses (past or future), “that resulted from the incident

that occurred on or about July 19, 2006.” Indeed, in asking the Court to grant a

mistrial/N.J.O.V. in this case, Plaintiff’s counsel acknowledged this clear

inconsistency in the jury verdict, stating as follows: “. . . I want to re-urge my

motion in light of what I consider to be, a miscarriage of justice. And I can point

out a number of things that I think are internally inconsistent. They were required

to answer Question 4. They answered by indicating “0,” when, in fact, there was

evidence on each and every element. And they are free to consider that, but they

are not free to reject that in light of the fact that they made the determination that,

in fact, Doan was injured.” Trial Transcript of proceedings held on September 24,

2009, p. 58. Thus, Plaintiff’s own counsel, in moving for mistrial/J.N.O.V.,

recognized that the jury verdict is internally inconsistent on material findings.

Indeed, this was a basis for Plaintiff to seek mistrial. Clearly, thus, it was improper

for Plaintiff’s counsel to argue defects in the verdict/internal inconsistency in order

to obtain a mistrial, and later move to have the defective verdict reinstated.

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 There are other material inconsistencies in the verdict. The jury awarded

Plaintiff $4,000.00 in attorneys fees for failure to pay maintenance and cure. This

award is directly and internally inconsistent with the jury’s specific finding that

Plaintiff incurred and was entitled to no medical expenses (past or future) as a

result of the incident, sustained no injuries and was entitled to no general or special

damages whatsoever. (Cr 385-88, Question Nos. 1, 3 and 4.) Further, there was

no evidence, or insufficient evidence, establishing that any failure to pay

maintenance or cure was unreasonable, arbitrary or willful and resulted in injury to

Plaintiff.

Moreover, the jury awarded $57,500.00 in punitive damages. This award is

completely inconsistent with the jury’s findings in Question Nos. 1, 3 and 4 that no

negligence or unseaworthiness by the F/V Larry Vo caused or was a proximate

cause of any injuries to Plaintiff. Accordingly, Plaintiff, through counsel, has

admitted that the jury verdict is internally inconsistent on material findings and this

was a basis for moving for mistrial. Apparently because he realized and was aware

of the internal inconsistencies in the verdict, counsel for Plaintiff, in seeking

reinstatement and Final Judgment, submitted only select jury findings to be

included in the Final Judgment.

In addition to the jury findings, there were defects in the charge and verdict

form. The jury found that the M/V Larry Vo acted willfully, arbitrarily or with

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callous disregard in failing to pay maintenance and cure, and awarded $4,000.00 in

attorneys fees for such action (Jury Question Nos. 10 and 11). Further, the jury

awarded an additional $57,500.00 in punitive damages, although there was no jury

charge on punitive damages and the jury interrogatories did not accurately set forth

prevailing law. However, the jury charge did not address punitive damages, and,

along with Jury Question No. 12, was not in accordance with prevailing maritime

law on recovery of punitive damages for failure to pay maintenance and cure.

Instead, Jury Question No. 12 is framed in terms of punitive damages based on

general maritime law or unseaworthiness and is clearly defective and unsupported

by law. For these reasons, the internal inconsistencies/defects in the verdict,

recognized by Plaintiff’s counsel in moving for mistrial, and the punitive damage

charge, it was error for the trial court to reinstate the jury verdict.

7. It was error for the trial court, in its Final Judgment and at the request
of Plaintiff’s counsel, to selectively enter judgment on certain of the
jury’s findings, as set forth in its verdict, while excluding other findings
of the jury’s verdict.
As amplified above, in entering Final Judgment, at the request of Plaintiff’s

former counsel, the Court has “carved out” certain of the jury’s verdict/findings

and adopted others. This selective Final Judgment, adopting certain aspects of the

jury’s verdict, but not including others, is procedurally and legally erroneous ( See

CR 139-173, 189.

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8. Alternatively, the damages by the jury in the reinstated verdict are
excessive and/or unsupported and Plaintiff is not entitled to interest on
the amounts awarded in the reinstated jury verdict or, if entitled to any
interest, the interest should not accrue between the time mistrial was
ordered and Final Judgment.
For all of the many reasons set forth above, it was error for the trail court to

withdraw the mistrial order and enter Final Judgement against Defendants five

years after granting mistrial at Plaintiff’s request. Alternatively, the damages

awarded by the jury are excessive. The jury awarded $51,551.40 for medical

treatment, which is inconsistent with other jury findings, unsupported in the record

or not sufficiently supported, and includes an alleged future surgery. Plaintiff never

underwent any such surgery and is now deceased. Further, the jury awarded

maintenance of $21,480.00, which is supported by no or insufficient evidence.

There was no, or insufficient basis or evidence, to award any attorneys fees

because Plaintiff failed to establish willful or arbitrary failure to pay maintenance

and cure. Further, again, the award of $57,500.00 for punitive damages is

inconsistent with other jury findings and supported by no or insufficient evidence.

There was no or insufficient evidence of willful or wanton conduct.

As amplified above, in reliance upon the Court’s mistrial order, Defendants

discovered new evidence establishing that plaintiff was not injured while in service

of the vessel; that he was not entitled to maintenance or cure and that Defendants

did not act willfully in failing to pay maintenance and cure or otherwise. Thus, if

43
S:\Vo - 1191\001 Doan\Pleadings - 14th Ct of Appeals No. 14-14-00994-CV\150810 Appellants Original Brief.docx
any amounts are awarded, certainly such amounts should not include any attorneys

fees or punitive damages.

In addition, Plaintiff should not be awarded interest on the amounts included

in the judgment because the awards included maintenance and cure, attorneys fees

and punitive damages. Further, as Plaintiff’s counsel acknowledged at oral

argument on the motions seeking reinstatement of the jury verdict and entry of

Final Judgment, Plaintiff is not entitled to any prejudgment interest. The exchange

between Plaintiff’s counsel and the trial court is as follows:

“THE COURT: But -- but then they’re also at a dis -- having to discover the

case more. I mean, I -- recognize this is a significant amount of time, right, five

years. Isn’t that a problem, Mr. Murray?

MR. MURRAY: It’s a problem for the Plaintiff because you don’t get

prejudgment interest in a Jones Act case. So, I get no benefit from going back.”

Accordingly, if this Honorable Court allows the Final Judgment to stand,

notwithstanding all of the issues set forth above, no interest should be included, or

in the further alternative, no prejudgment interest should be awarded.

44
S:\Vo - 1191\001 Doan\Pleadings - 14th Ct of Appeals No. 14-14-00994-CV\150810 Appellants Original Brief.docx
 PRAYER FOR RELIEF
WHEREFORE, PREMESIS CONSIDERED, Appellants pray that the

Court:

1) Reverse the trial court’s order withdrawing its mistrial order and

reinstating the jury verdict;

2) Reverse the trial court’s Final Judgment against Appellants in its entirety;

3) Render judgment in favor of Appellants, dismissing all claims against

Appellants, with prejudice;

4) Alternatively, providing to Appellants the relief requested in Prayer Nos.

1 and 2 above, and remand the case to the trial court for further

proceedings consistent with these rulings, including but not limited to,

trial of this case.

5) In the further alternative, reverse and revise the judgment against

Defendants to include maintenance and cure only, and no interest;

6) In the further alternative, reverse and revise the judgment against

Defendants to include maintenance and cure only, and interest from entry

of judgment only, with no prejudgment interest;

7) Grant Appellants such other and further relief to which they may be

entitled.
45
S:\Vo - 1191\001 Doan\Pleadings - 14th Ct of Appeals No. 14-14-00994-CV\150810 Appellants Original Brief.docx
 Respectfully submitted:

By: Thomas P. Henican
Marguerite K. Kingsmill
(Texas Bar No. 00788902)
Christy R. Bergeron
(Texas Bar No. 24044582)
Thomas P. Henican
(Texas Bar No. 24075926)
KINGSMILL RIESS, L.L.C.
201 St. Charles Avenue, Suite 3300
New Orleans, Louisiana 70170-3300
Telephone: (504) 581-3300
Telecopier: (504) 581-3310
Attorneys for Appellants, Andrew T. Vo
d/b/a Larry Vo, Andrew T. Vo, Viet Le, and
Tam Van Le

46
S:\Vo - 1191\001 Doan\Pleadings - 14th Ct of Appeals No. 14-14-00994-CV\150810 Appellants Original Brief.docx
 CERTIFICATE OF SERVICE
I certify that on August 10, 2015, a copy of this brief was served by e-

service e-mail to the following counsel:

Mark T. Murray Robert S. Kwok
Stevenson & Murray William W. Hoke
24 Greenway Plaza, Suite 750 Robert Kwok & Associates, L.L.P.
Houston, Texas 77046 6588 Corporate Dr., Suite 300
Houston, TX 77036

Thomas P. Henican______________________
Thomas P. Henican, Counsel for Appellants

CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word, this Appellants’ Brief

contains 10,159 words, including all sections of the brief, whether or not exempt

from the word count under Texas Rule of Civil Procedure 9.4.

Thomas P. Henican______________________
Thomas P. Henican, Counsel for Appellants

47
S:\Vo - 1191\001 Doan\Pleadings - 14th Ct of Appeals No. 14-14-00994-CV\150810 Appellants Original Brief.docx
 APPENDIX

A. Trial Court’s Order on Plaintiff’s Motion to Enter Final Judgment

B. Trial Court’s Final Judgment

C. Jury Charge and Verdict

48
S:\Vo - 1191\001 Doan\Pleadings - 14th Ct of Appeals No. 14-14-00994-CV\150810 Appellants Original Brief.docx
EXHIBIT A
 Filed 12 September 13 P2:57
Chris Daniel -District Clerk
Harris County
ED101J017076389
By: Wanda Chambers
NO. 2007-19358

HOKIMDOAN § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, TEXAS
§
ANDREW T. VO D/B/A LARRY VO § 129TH JUDICIAL DISTRICT

ORDER ON PLAINTIFF'S MOTION TO ENTER FINAL JUDGMENT

BE IT REMEMBERED that upon the day and date shown hereinbelow came on for

consideration Plaintiff's Motion to reconsider the motion for mistrial, withdraw its order of mistrial

and enter final judgment based on the charge of the Court answered by the jury~ the Court, having

considered the pleadings and the evidence, finds said motion to be with merit; it is, the\.efore J..t:\- (~o~t
~~ S4--t ~L.\4- 1 -r"'t, v~r or
ORDERED that the order of mistrial is withdrawn and final judgment based on the charge 0
~v.k
of the court, as answered by the jury, be entered herein. 5"\"'tfr~· "''¥
O.D o'\
\l . \_ - Jf 9-0 {\-\ '2 '1 } ~
SIGNED on this the~ day of $~1J~ ,.!;>'~
2nyt.,. L
, 1'
''t-~
~ t-1
}

SEP 1 6 7014 (\ II '

-~/V\ ~
JUD6E PRESIDING

RECORDER'S MEMORANDUM
This instrument is of poor quality
at the t1me of imaging 188
EXHIBIT B
 FILED
'-P-4
Chris Daniel
Distrfct Clerk tfA
SEP 1 6 2014
.....,_ .. NO. 2007-19358
IJt
HOKIMDOAN §
§
IN THE DISTRICT COURT OF e·•,,_, 1-l 5·1 ¥·1
1
14 .J
~
J
vs. § HARRIS COUNTY, TEXA S
U 1
11'1 /-'
§
ANDREW T . VO D/B/A LARRY VO § 129TH JUDICIAL DISTRICT

FINAL J UDGMENT

On September 22, 2009, the Court called this case for trial. Plaintiff, Ho Kim Doan,

appeared in person and through his attorneys, announced ready for trial Defendants appeared

through their respective representatives and through their attorney and announced ready for trial.

Thereafter the Court empaneled and swore in the jury. In turn, the jury heard evidence and

argument of counsel. At the close of all evidence, The Court submitted its Charge, containing

instructions, definiti ons, and questions to the jury. The Charge of the Court contained the following

answers:

Question No.2:

Do you find that the FN LARRY VO was unseawo rthy at the time of the incident that

occurred on or about July 19, 2006:

Answer: Yes.

Question No.5:

Oo you find that FN LARRY VO owes maintenance and cure to Kim Ho Doan?

Answer: Maintenance: Yes/Cure: Yes.

Question No. 6:

On what date do you find that F/V LARRY YO's obligation to pay maintenance and

cure to Kim Ho Doan bega n:

Answer: July 19,2006.

RECORDER'S MEMORANDUM
This instrument ts of poor quality
at the ttme of imaging
189
APPENDIX B
 Question No. 7:

Do you find that Kim Ho Doan has reached maximum cure? "Maximum cure" means

the point at which no further improvement in the seaman's medical condition may be

reasonably be expected.

Answer: Yes.

Question No. 8:

On what date do yo u find that Kim Ho Doan has reached in the past, or will in the

future reach, maximum cure'?

Answer: July 5, 2008.

Question No. 9:

What sum of money, if paid now in cas h, would fairly and reasonably compensate Kim

Ho Doa n for (a) maintenance, and (b) cure'?

"Maintenance" means the amount that would be necessary to provide the seama n with

food and lodging comparable to the quality of food and lodging afforded to the sea man aboard

the Vessel for the time between the date the sea man leaves the Vessel until he reaches

maximum cure.

"Cure" includes the cost of medical attenti on, including the sen'ices of physicians and

nurses, as well as the cost of hospita lization, medicine and medical apparatus incurred by the

seaman from the date he leaves the Vessel until he reached maximum cur e.

Consi der the elements listed below and none other. Consider each element separately.

Do not award any sum of mon ey on any element if you have otherwise under some other

element, awarded a sum of money for the same loss. That is, do not compensate twice for the

2

190
same loss, if any. Do not include the interest on any amount you find.

Answer separately, in dollars and cents, for the clements listed below, if any.

Answer in dollars and cents, if any.

Answer: (a) Maintenance: S21,480.00; (b) Cure: S51,551.40

Question No. 10: Do you find that FN LARRY VO acted willfully, arbitrarily, or will

callous disregard in failing to pay maintenance and cure to Kim Ho Doan:

Answer: Yes.

Questions No. 11: What is a reasonable fee for th e necessary services ofKim Ho Doan's

attorney in this case, stated in dollars and cents?

Answer: $4,000.00

Question No. 12 : 1. Under General Maritime Law: You may but are not required to

award punitive damages against a defendant who has acted willfully and wantonly. The

purpose of an award of punitive damage is to punis h the defendant and to deter him and

others from acting as he did.

As a person willfully and wantonly if he acts in reckless or callous disregard of, or with

indifference to, the rights of the plaintiff. An actor is indifferent to the rights of another,

rega rdless of the actor's state of mind, when he proceeds in disregard of a higb and excessive

degree of danger that is known to him or was apparent to a reasonable person in his position.

2. Unseaworthiness: You may, but are not required to award punitive damages if

you find that the ship owner, F/V LARRY VO, wantonly or willfully failed to provide the

plaintiff with a seaworthy vessel, and that failure was a proximate cause of the plaintifrs

injuries.

3

191
 Answer: S57,500.00.

Court enters this final judgment in this mat1er in favor of the plaintiff and against defendants,

awarding all money damages set out above by the jury findi ngs in the amount of one hundred thirty-

four thousand five hundred thirty-one dollars and forty cents ($ 134,531.40), and to include all costs

of Court, mediation expenses, and all interest penni ned by law. This is a fi nal appealable judgment( :t
~ l~~o~ { o.\- 4..\\ \fk; to\.(
Let execution issue. 0-..'I'Jc}.. _ c
~~r+. ~ r 1
~t-..J
. ---------- -\ f
50-~~\yj \b 1)\~
SEP 1 6 2014 JUDGE PRESIDfNG ~~~\ "'\-;\~

192
EXHIBIT C
 ORIGINAL
NO. 2007~19358

HO KIM DOAN, § IN TilE DTSTRICT COU RT OF
Plaint iff, § !£ ~
§ !'!
vs. § HARRIS COUNTY,
§
Al\TDREW T. VO DIB/A LARRY VO, ~
~ !..
Defendant. § J29TH .f(JDJ~~~ ~ Il
.... f!J; ~~ ;;
CHARGE OF THE COURT ·t ~ U~"= i

LADIES AND GENTLEMEN OF JURY: (,. .,~~~~~~:t}
~,.,, ~
\
This case is submitted to you by asking questions about tJ:t;.; ~J;~ich you must de ide
from the evidence you have heard in this trial. You are the solfN~~:~~,'~f the credibility of the
wit1~csses a?d th~ we!ght to give the~r testin~ony, but in mall~~~-.of·~~ot~ must be g~vemed by
the mstructlOns m tb1s charge. In dtschargmg your respon~·!?:lllt lhts JUry, you wdl observe
all of the instructions which have previously been given tQjfJI"" hall now give you add itional
instntctions which you should carefully nnd strictly foiJ.~~~ your deliberations.

1. Do not let bias, prejudice. or syn.1pat~~ny part in your deliberations.

2. In arriving at your answers, con~~~rhe evidence introduced here u nder oath
and such exJtibits as have been introduced fQ.~~~~sideration under the rulings of the court,
that is~ what you have seen and heard in tbi9.~room, together with the law as given you by
the court.. In yo~r d~liberations, you \~q~~~~nsider or discus~ anything that is not represented
by the cv1dcnce. m thts case. r~Fi ~!-1'~
(,.l'· · ~-
·r~·., ~
3. Since every answer.'tl~'S required by this chorgc is important, no j uror should
state or consider that any requir\;.et,\~ver is not important.
('\~ '
.,_:.~

4. You must ~6'tl1~ who you think should win, and then try to answer the
q~estions accordingly. ~~~l~~swer the questions, and do not discuss nor concern yourselves
wtth the effect of yom .~!l~ .
e <\$.~~
S. Youi.' t decide the answer to a question by lot or by drawing straws, or by
any other metho9."'-b · ' nee. Do not return a quotient verdic.t. A quotient vt:rdict means that the
jurors agree ~<~~ · by the resu lt to be reached by adding together each juror's figures and
divid ing by th ~ ber of jurors to get an average. Do not do any trad ing on your answers; that
is, one juror shou d not agree to answer a certain question one way if others wi II agree to answer
another question another way.

6. Unless othenvise instructed, you may render your verdict upon the vote of ten or
more members of the jury. The same ten or more of you must agree upon aJ I of the answers

EXHIBIT RECORDER'S tiiEMORANDUM:
This instrument Is of poor quality
2. and r:~ot sc.lisfactorylor phc-lographic
recordation anator alt~rations wer~
present at the lime oi filming

APPENDIX C 377
made and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a
majority or any other vote of less than ten jurors. If the verdict and all of the answers therein are
reached by unanimous agreement, the presiding juror shall sign the verdict for the entire jury. If
any juror disagrees as to any answer made by the verdict, thost: jurors who agree to all findings
shall each sign the verdict.

These instmctions are given you because your cond uct is subject to review the same us
that of the witnesses, parties, attorneys, and the jt1dge. If il should be found that you have
disregarded any of these instmctions, it will be jury mjsconduct and it may r:9ui . otl1er trial
by another jury; then all of our time will have been wasted. The presiding jur~ 'b
y other who
observes a violation of the court's instmctions shall immediately warn t}J.e~ · o is violating
the same and caution the j uror not to do so again. ,'f.."!:~
e \ .},·
-~,.:··~~)
trr .
Any notes you have taken are for your own personal use an~~ taken back mto the
jury room and consulted by you during deliberations, but do not sb'~~~ead your notes to your
-~"''~-::ll_
fellow jurors during your deliberations. Your notes are not cvi~~~ Each of you should rely
upon your independent recollection of the evidence and not b~e'«ced by the fact that another
juror has taken notes. ;~~~

"n
1
~~
I . c harge .~n .a. sen~: ,::\Yines from t1e
hen words a~e usc d .m t11s I menn1ng
. .common Iy
understood, yotJ are gtvcn a proper legal dehmt10n,Aw · ·ou nre bound to accept 10 place of
any other meaning. -=~~
.., dk,~

b~ bused on a prt::ponderance of the cv1dent~
evidence supports a "Yes" answer, then n~~\.~~o."
~
Answer ''Yes" or "No" to all que~tion~ ·€ ' t'herwise instructed. A ·'Yes" answer must
you do not find that a pr~ponderance of the

. Th.e te1~1
"preponderance of.~~nce" m:ans th: greater weight of credible evidence
adJrutted m th1s case. A prepon~~...··~of the ev1dence IS not measured by the number of
witnesses or by the number of dR~)!ills admitted in evidence. For a facl to be proved b)' a
preponderance of the evidenc~c~\?u must find that the fact is more likely true than not true.
Whenever a question requi;,e~l.~wer other than a "Yes" or "No" answer, your answer must
be based on a preponder~~~~ evidence.

A fact may be<~:. ·· lished by direct evidence or by circumstantial evidence or both. A
fact is established &i·~· · ct evidence when proved by documentary evidence or by witnesses
who saw the act · ~ ) or heard the words spoken. A fact is established by circumstantial
evidence when iJ;' . e fairly and reasonably inferred from other facts proved .
....... ,.

For ,;~es of the following questions, ANDREW T. VO, Individually and d/b/a FIV
Larry Vo, ~LE, Tam Van Le, and VO-LE INC. arc to be treated as one entity and nre
referred to collectively as "FN LARRY VO"

2

378
 DEFINITIONS AND I NSTR UCTIONS

Seaman Status

Kim Ho Doan is seeking damages from FN LARRY VO for injuries that he allegedly
suffered as a result of an incident while he was performing hi:; duties as a crew member abomtl
the F/V LARRY VO.

One of Kim Ho Dean's claims against fN LARRY YO is for Jones Aej..':f:,l.~~ncc.
,.,~""~~

Under the Jones Act, Kim Ho Doan must prove that his e•w~~as negligent.
Negligence is the doing of an act that a reasonably pntdent person wou~g \1oi ~)or the failure to
do something that a reasonably prudent person wouJd do. tlQ.?ii&'~ same or similar
circumstances. The occurrence of au accident, standing alon~(~~ot mean anyone's
negligence caused the accident. " ~~· ~

Tt includes any breach of duty that an employer owes~ti~t~~ployees who are seamen,
including the duty of providing for the safety of the crew. •·.j?.;!7~
(:~"' ~
Under the Jones Act, if the employer's neg~d~~~caused the plaimifl"s injury, in
whole or in part,, then you must find the employer is l.ia~~der the Jones Act.
.._~?>,?~
.=~~)
Negligence under the Jones Act may co~.~ ·~ failure to comply wi th a duty required
by law. Employers of seamen have a duty tf .'< • e their employees with a reasonabl y safe
place to work. Tf you find that Kim Ho ~~(~ injured because FlY LARRY VO failed to
furnish him with a reasonably safe place ta.:..;~c, and that Kim Ho Doan's working conditions
could have been made safe through the ~~~-fhl of reasonable care, then you must find that F/V
LARRY VO was negligent. _;..«_ ..._Q
Tbe fact that FlY LARRy[~onducted its operations in a marUler similar to that of
other companies is not conclus~(~\~'whether FIV LARRY YO was negligent or not.
·r'~
You must detem1Jil ·:.-~ · e operation in question was reasonably safe under the
circumstances. The fact•l!t · < ce11ain practice has been continued for a long period of time docs
not necessarily mean tl~~~s reasonably safe under all circumstances. A long accepted practice
may be a:1 unsafe Pfi}<( ·~YHowever, a practice is not necessarily unsafe or unreasonable merely
because it injures s e.
( ·.~

. A se_a~~ _mplo~er i~ l~gaJly responsible for the n~gligence of one of his employees
wh1le that e~e ts actmg wJthm the course nnd scope ofhts employment.

If you find from a preponderance of the evidence that F!V LARRY YO assigned Kim Ho
Doan to perform a task that Kim Ho Doan was not adequately trained to perform, you must find
that FN LARRY YO was negligent.

3

379
Unseaworthiness

IGm Ho Doan seeks damages for personal injury thor he clnims wns caused by rhe
unseaworthiness of the FN LARRY VO.

Liability for an unseaworthy condition docs not in any way depend upon negligence or
fauh or blame. That is to say, the ship owner or vessel owner is liable for all injuries and
consequent damages proxjmately caused by an unseaworthy condition existing at any time, even
though the owner may have exercised due care under the circumstances, andc;!..!lay~e had no
notice or knowledge of the unseawor1hy condition wh ich proximately c~~sq~,~- injury or
dnmage. ·r··~··fj
...::Jl~,'~
,~
\, )
Defective equipment or unsafe conditions aboard the ves~c~~}~nder the vessel
unseaworthy. ";'Ji.,~

N ow, to recover f.or unseaworth'mess, Ihe pImnt1
. 'f'f' .:-·~~~~
n'l.[l_st~. ~ not
:>.¥e on Iy that I1e was
injured on an unseaworthy vessel but that his injury ·'Wa~ roximate result of rhe
unseaw011hiness. ~ -t@.:::,if:lj;
<:~ ~
A Vessel owner owes to every member of the/~t:..~~oyed on its Vessel the absolute
duty to keep and maintain the Vessel, and all deck~ an~ssageways, appliances, gear, tools,
parts and equipment of the Vessel in a seaworthy c2~~ at ulltimcs.
-···':>.· ~
~
~-
A seaworthy Vessel is one that is rcaso~~ for its intended use. The duty to provide
a scawonhy Vessel is absolute because tl~ r mny not delegate that duty to anyone.
Liability for an unseaworthy condition doe(i)~l any way depend upon negligence or faull or
blame. If an owner docs not provide a .~~~y Vessel -a Vessel that is reasonably fit for its
intended use - no amount of care or p,(i.l ~xcuses the owner.
(~~· ~

The duty to provide a s/- . . Vessel includes a duty to supply an adequate and
~ompetent crew. A Vess~l may~~~ eaworthy even though it hns a numerically adeq uate crew,
tf too few persons are ass1gne~~~ven task .
.;r· \~~
However, the o\~.iPo~a Vessel is not required to furni sh nn accident free Vessel. He
need only furnish a V~-s~: ~its appurtenances that are reasonably lit for their intended usc and
a crew that is reaso 1ti ~ 'equate for its assigned tasks.
,)'(,; .
The Vess. : · er is not required to provide the best appliances and equipment, or rhe
finest of crew ;-~" s Vessel. He is only required to provide gear that is reasonably proper and
suitabl~ for i '' ded usc, and a crew that is reasonably adequate.

In summary, if you find that the owner of the Vessel did not provide an adequate crew of
sufficient manpower to perfom1 Ihe tasks required, or if you find that the Vessel was in any
manner unlit in accordance wjtb the law as I have just explained it to you and that this was a
proximate cause of Kim Ho Doan's injury, a term I will explain to you, then you may find that

4

380
the Vessel was unseaworthy and the Vessel owner liable, without considering any ne.gligence on
the part of the owner or any of its employees.

However, if you lind that the owner had a capable crew and appliances and gear that
\Vcre safe and suitable for their intended use, then the Vessel wus not unseaworthy and the owner
of the Vessel is not liable to Kim Ho Doan on the claim of unseawo tthiness.
tvlainlenance and Cure

Another of Kim Ho Doan's claims against FIV LARRY VO is for main~~*nd cure.
n,'>., &~
Kim Ho Doan, as a seamnn. is entitled to recover maintenance ap~~~fhis claim is
separate and indep~nd~nt fr~m bo~h the Jones Act nnd the ltnsea\~Ort.i?f~~L~ms of Kim Ho
Doan. You must dectde thts clatm separately from your cleternlln!J}t$f]·· ~'1'1ts Jones Act and
unseawortl1iness claims. ....:';··~~~
,.,~~
< .~~~~
Maintenance and cure is a seaman's remedv. If )' Otl deter~~nWi'at Kim Ho Doan was a
'" urc.
seaman, you then must determine ifhe is entitled to. maintcnat~,®c
:<::f,/ rift
. Maintenance nnd c~re provides a seaman, who is ~~~by inju~·y o; i_llnes7 \·Vhil~ in ~c
serv1ce o~the Vessel, mcdtcal care and treatment, an~~tl~ns of mamtammg h1msell, whtle
recuperatmg. 4~-
,. (C:J~?.,...
"r·· ~J
A seaman is entitled ro maintenance an · ·· n though he was not injured as a re~ul t
of any negligence on the part of his e.mploycr'~ -~ ' . unseaworthy condition of the Vessel. To
recover maintenance nnd cure, Kim Ho Do~t~ only show that he suffered injury or illness
while in the service of the Vessel on whl~ was employed as a seaman, without willful
misbehavior on his part. The injury or i.y·:" · need not be work related , it need only occur while
1
the seaman is in the service of lhe.J.!, '. • • And maintenance and cure mav not he reduced
' '-';:( ' I
because of any negligence on the par~ c seaman.
z~
The "cure" to which a . ·e·· ri1rfi may be entitled includes the cost of medical attention,
including the services of pby~1 and nurses as well as the. cost of hospitalization, medkines
and medical apparatus. H:cr~: the employer does not have a duty to provide cure for any
period oftime during whi~ · eaman is hospitalized at the employer's expense.
-~':>
~ (i~

Maintenanc%· a ~?cost of food and lodging, and transportation to and from a medical
facility. A seaman-. ', ' entitled to maintenance for that period of time that he is an inpatient in
any hospital, bee r; ' f the cure provided by the employer through hospitali7.ation includes the
food and lod oi fi' ~· . ' he seaman.
~

5

381
 A .seaman is entitled to receive maintenance and cure from the date be leaves the Vessel
until he reaches the point of what is called "maximum cure." Maximum cure is the point at which
no fl.llther improvement in the seaman's medical condition is reasonably expected. Thus, if it
appears that a seaman's condition is incurable, or that the treatment \viii only relieve pain but \Viii
not improve a seaman's physical condition, he has reached maximum cure. TI1c obligation to
provide maintenance and cure usually ends when qualilicd meclical opinion is to the effect thn t
maximum possible cure has been accomplished.

If you decide that. Ki1~1 Ho Doan is :ntitled to mttinLenunce 1.111d ~ure, y~~~~111~etennine
when the .emp.loyer's o~h~at10n to pay m~mtenanc~ began, and when .tt e~~~§- ·· ..~ factor yo.u
may cons1der m detenmmng when the penod ends IS the date when Ktm).J· 1 resumed hts
employment, if he did so. However, if the evidence suppotis a lindingjJiii~c omic necessity
forced Kim Ho Doan to return to work prior to reaching maximuql_(f]l~J'ou may take that
finding into consideration in determining when the period for maint~~~d cure ends.
v--.~
If you find that Kim Ho Doan is entitled to an award o( s under either the Jones
Act or unseaworthiness claims, and if you award him either lo,S:,N~ r medical expenses, then
you may not nward him maintenance and cure for the same~~f time. That is because Kim
Ho Doan may not recover twice for the same loss of wagy~~~~Ciical expenses. However, Kim
Ho Doan may also be entitled to an award of damag~~~1ure to pay maintenance and cure
when it was due. .~~
~~~
A Vessel owner ·who has received a ~;~~r maintenance and cure is entitled to
investigate the claim. However, if after invesq-ij"· ~~he claim, the Vessel owner unreasonably
rejects the claim lor maintenance and cure! ·;. e'
liable for both the maintenance and cure
payments he should have made, and any ~ · nsatory damages caused by his unreasonable
failure to pay. Compensatory damages IT).i~~c ude any aggravation of Kim 1-Io Doan 's condition
because of the failure to provide m~~%:~~~and cure.
~
Thus, you may award comp~tOry damages bccaLtse the Vessel owner railed to provide
maintenance and cure if you t~;~~ preponderance of the evidence thtlt:

1. Kim Ho Do?,jl.yj\ntitled to maintenance and cure;
~~
2. It was nq§~vided;
.($:j]QY
e--' ·~~
3. FN· ~ Y YO acted unreasonably in failing provide maintcmmcc and cure; and
( .
4. ailure to provide lhe maintenance and cure resulted in some injury to Kim
Doan.

6

382
 1fyou also find that the Vessel owner's failure to pay maiJ1te.nnnce and cure was not only
unreasonable, but was willful, that is, with the deliberate intention to do so, you may also award
Kim Ho Doan attorney 's fees. However, you should not award altorney's ft:e~ unless the Vessel
O\'·mer acted willfully in disregard of the seaman's claim tor maintenance and cure. Kim Ho
Doan may not recover attorney's fees for the prosecution of the Jones Act or unseaworthiness
claims. Thus, you may award on ly those attorney's fees Kim Ho Doan incu!Tcd in pursuing the
maintenance and cure claim and on ly if you fi nd that the Vessel owner acted willfully in failing
to pay maintenance and cure.

Kim Ho Doan may not recover attorney's fees for the proseculion,B
f~nes
•:,.tl
Act or
*
tmseawOJ:hin~ss clai~ns. You m~y award .alto1:1:ey's fees only if you findtf~· ~vessel owner
acted arb1tranly or w1th callous disregard, 111 fathng to pay mamtcnancc ~~:~ .
,. c;:_c. ~
Negligence Under the General Maritime Law :rt:;~
r,:~--~
.. Kim Ho Donn's claims against F!V LARRY VO is, f~~~ence under the general
mantime Ja\v. :;:.;~~
h \110['~

Ncgligent;e under the generlll maritime law is tJi~g of an act that a reasonably
prudent person would not do, or the failure to do so~~-e~that a reasonably prudent person
would do, under the same or similar circumstances,.~~'f~~currencc of an accident, standing
alone, docs not mean anyone's negligence caused tl~~~@l1enl.
Causation ~~~~--
(_(J
Not every i~1j~ry that follows an ac~f~~ne:cessarily results from it. The accident must
be the cause of the InJury. ·v, ':·~
)~
In deletmining causation, a~~·· ·.t·:clht rule applies to the Jones Act claim and to the
unseaworthiness and negligence cirri"'·~ Cler the general maritime law.
,... ~)
. . In an unseaworthiness .g1~ Kjm Ho Doan mus~ ~how, not mere~y that the unse~wo_rll:y
condition was a cause of tll.e,<~Y, but that such condiiwn was a proximate cause of 1!. fb1 s
m~an~ that Kim Ho Doan l~~)'Ro~ t~a.t the condition in ~t~estion wa: a subs~antial factor in
bnng1ng about or actua~~~smg hts mJury, and that the m_1ury was etthcr a dtrect result or a
reasonably probable c6~~ence of the condition.

In aneg~!·
Jt:~aim under the general maritime law, Kim Ho Donn must show, not
merely that the . ,. ~ ':gence wus a cause of the injury, but that such net or omission was a
proximate cm~f · tt. This me.ans that Kim Ho Doan must show that the act or omission in
question wa~u stantial factor in bringing about or actually causing his injury, and that the
injury was either a direct result or a reasonably probable consequence of the act or omission.

7

383
Damages

If you tind a Defendant or Defendtults are liable, you must award rhe amounr you find by
a preponderance of the evidence as full and just compensation for all of Kim Ho Donn's
damages. Compensatory damages are not allowed as a punishment agl'linsl a parly. Such
damages cannot be based on specu lation, for it is only actual damages-what the law calls
compensatory damages-that are recoverable. However, compensatory damages are not
restricted to actuaJ Joss of time or money; they include both the mentul and physical aspects of
injury, tangible and intangible. They are an attempt to make Kim Ho Donn wh~.!~~o reslore
him Lo the position he would have been in if the incident had not happened. , .t } ~
. :'::~ff~
You should consider the following elements of damages, to the!!"''~~~~ find that Kim
Ho Doan has established such damages hy a preponderance of the e'l;i9.~~~hysical pain and
suffering including physical disability, impairment, and inconvcnien~,~~~~~he dfect of Kim Ho
Donn's injuries and inconvenience on the normal pursuits and P~S!SUl~ life; mental -anguish
i:lnd feelings of economic insecurity caused by disability; incorr(~f~ the past; impaim1ent of
earning capacity or ability in the future, including impairmenrj·B,~~;mal progress in Kim Ho
Dean's earning capacity due to his physical condition; po~~f~~al expenses; the reasonable
value, not exceeding ac.tual cost to Kim Ho Dmm, of J1!ie~ care that you find from the
~vidence ~,viii be reasonably certain to be required in tl}_fi~ts a proximate resull of the injury
lll question. •. ''::-~ -
<,~~
Some of these damages, suc.h as menta~ . ··: ~ sica! pain and suftl:ring, are intangible
things about wh ich no evidence of value is :e~ ·,· In awarding these damages, you are not
detem1ining value, but you should award ~J~ t that will fairly compensate Kim Ho Doan
for his injuries. .. '~
~f)
Any award you make lO Kim.J~~ is not subject to income tax; neither the state nor
the federal government will tax il:r.·1i~fore, you should detennine the amount tho! Kim Ho
Doan is entitled to receive without ~~ering the effect of taxes upon it.

Los., vfFuture Earnings , ,r,~
:~~~ ..
If you find that 1\.j~o Doan JS entitled to an award of damages for loss of future
earnings, there arc two> ,..~ ular factors you must consider. First, you should consider loss after
income taxes; that i,§.r. · @11ouJd detennine the actual or net income that Kim Ho Doan has lost
or will lose, taking . ·· onsideration that any past or future earnings would be subject to income
taxes. You mu~~ d Kim Ho Doan only his net earnings after lax. This is so because any
award you m~e is not subjec~ to i~come tax, The federal or slate government will not ta.-x
any amount~ you award on thts basts.

Second, an amount to cover a future loss of earnings is more valuable lo Kim Ho Dmu1 if
he received the amount today than if he received the same amount in the future. Therefore, if
you decide to award Kim Ho Doan an amount for lost future earnings, you must discmmt it to
present value by considering what return would be realized on a relatively risk free investment

8

384
 QUESTION NO. 1

Did the negligence, if any, of those named below cause the injuries to _Kim Ho Doan?

When considering the negligence, if any, by FN LARRY VO, consider the act<> or
omissions of its respective agents, employees, representatives, or servants.

Answer ''Yes" or "No" for each of the following:

FN LARRY VO

9

385
 QUESTION NO. 2

Do you find lhnt the FlY LARRY VO was unseaworthy at the time of the incident that
occurred on or about July 19, 2006?

Answer " Yes" or "No.''

ANSWER:

10

386
 If you answered "Yes" to Question No. 2, then answer the foll owing question.
Othenvise, do not answer the following question.

QUESTiON NO. 3

Do you find that the unseaworthy condition of the FIV LARRY VO was a proximme
cause of the injuries to Kim Ho Doan?

Answer "Yes'' or "No."

ANSWER: No

11

387
 QUESTION NO.4

What sum of money, if paid now in cash, would fairly and reasonably compensate Kim
Ho Doan for his injuries, if any, that resulted from the incident that occurred on or about July 19,
2006'?

Consider the clements or damages listed below and none:: other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under some
other element, awarded a sum of money for the same loss. That is, do not cQmp~e twice for
the same loss, if any. Do not include interest on any amount of damages yo~:!fi'l~
; ..:'..:.;~
._ _Answer separately, in dollars aHd cents, fo~ damages, ~f any. ~n~~uce the amounts,
1! any, m your answers because of the negligence. 1f any, of Kun Ho._poanci\
··(·~·
a. Past physical pain and suffering including phys~ability, impairment, and
inconvenience, and the effect of Kim Ho Doan's injuries ~~onvenience on the normal
pursuits and pleasures of life. ':'~~
~._-;~
ANSWER: - 0 -- 3~~
b. Future physical pain and suffering in~~~~1ysical
disability. impairment, and
inconvenience, and the effect of Kim Ho Doaj~ries and inconvenience on tbe normal
pursuits and pleasures of life. .-("?f~~---
~'~
--..:0=-----.. ·~~
A.J'\JSWER: _ _

c. Past mental anguish a.ncj..,{d'.Q;~>,'ngs of economic insecutity caused by disability.
((~
ANSWER: - b -,~
~)
d. Future mental_~sh and feelings of economic insecurity caused by disability.
~~~I)
ANSWER: 1;=;i..,~ -
~'Y
e. Incon~* in the past.
ANSWE
l l
' '#~ C
,I

f. , )I painnent of earning capacity or ability in the future, including impainnent in
the normal~ress in Kim Ho Doan's earning capaci t)' due to his physical condition.
ANSWER: - 0 ·-

12

388
g. Medical expenses in the past.

ANSWER: ----~---~------

h. Medical expenses in the future.

ANSWER: - (...... _

13

389
 Q UESTION NO. 5

Do you find thal F/V LARRY VO o"ves maintenance and cure lo Kim Ho Doan?

ANSWER "Yes" or "No" for each of the following:

Maintenance:

14

390
 QUESTION NO. 6

On what date do you find that FlV LARRY YO's obligation to pay maintenance and cure
to Kim Ho Doan began?

Answer by giving a month, day, and year.

ANSWER:

15

391
 QUESTION NO. 7

Do you find that Kim Ho Doan has reached maximum cure?

"Maximum cure" means the point at which no further improvement in the seaman's
medical condition may reasonably be expected.

Answer "Yes" or "No."

ANSWER:

16

392
 QUESTION NO.8

On what date do you find that Kim Ho Doan has reached in the past, or will in ihe future
reach, maximum cure?

Answer by giving a monrh, day, and year.

ANSWER:

17

393
 Q'UESTION NO. 9

What sum of money, if paitl now in cash, would fai rly antl reasonahly compensate Kim
Ho Doan for (a) maintenance, and (b) cure?

"Maintenance" means the amount that would be necessary to provide the seaman with
food and lodging comparable to the quality of food and lodging afforded to the seaman aboard
reach~maximum
the Vessel for the time between the date· the seaman leaves the Vessel until he.,ft
~ ~
" . ~
~-
t ~~}
!'-..,t,. 5 ..>/. vc
"'U'
l'·\~
~e~

:!.~
,., •j(.~
. r)ti~r
-.<'-~··~}
'l:n.~'
~
.~
t~-
·~~

18

394
 QUESTION NO. 10

Do you find that FN LARRY YO acted willfully, arbitrarily, or with callous disregard in
failing to pay maintenance and cure to Kim Ho Doan?

ANSWER ''Yes" or ''No."

ANSWER:

19

395
 If you have answered "Yes" to Question No. I 0, then answer the following question.
Otherwise, do not answer the follo·wing question.

QUESTION NO. 11

What is a reasonable fee for the necessary services of Kim Ho Oo;:m 's attorney in this
case, stated in dollars and cents?

Answer in dollars and cenL'>.

ANSWER:

20

396
 Jf you have answered "Yes" to Question No. I 0, then answer the following question.
Otherwise, do not answer the following question.

QUESTION N0 . 12

1. Under General Maritime Law

:ou may but are not required to awar? punitive damage_s _against a ~1[.en~ w_ho has
acted Willfully and wantonly. The purpose ot an award of punlltve damage:S.::JS ~msh the
defendant and to deter him and others from acting as he did. -~1;~~
. ~-· ;-<,if' ~
·-~.J y
As a person acts willfully and wantonly if he acts in reckless ~r.. s;a~s disregard of, or
with indifference to, the rights of the plaintiff. An actor is indiffer~{j~~ rights of another,
regardless of the actor's state of mind, when he proceeds in disr~'g~~a high and excessive
degree of danger that is known to him or was apparent to a reas~~f?h,~on in his position.
( ,.,.JQ ·
2. Unseaworthiness >.-~ ~
=:::.~~~@
You may, but are not required to award punitive 9:~ if you find that the ship owner,
FN LARRY VO, wantonly or -..villfully failed to prefi:~@>plaintiff with a seaworthy vessel,
and that failure was a proximate cause of the plain~L~'itti'Mes.
,:r-,..,~
Answer in dollars and cents.
,,-~""~:~~
l· '·:
ANSWER: $ >""f: S'oo . o t",~:~~
,. ·. .
~o
•-'t:l'
,-!/.[@
(~'£.4t...Y
('~~~~
. ··(j~
~

{~
('R0~
-~--~
<',.}?~
.:~···~(Qi'

.~-&~(j
•(<'• ~ '

..-S"'
, ~r~
~~

21

397
PRESIDING JUROR

When you go into the jury room to answer the questions, the first thing you will need :o
do is choose a presiding juror. The presiding juror has the following duties:

1. Have the complete charge read aloud, if it will be helpful to your deliberations.

2. Preside over your deliberations. This means the presiding juror wilL ranage the
discussions and see that you follow the instructions. --~~ ~
:<>P~~@
3. Give written questions or comments to the bailiff who wil!(glje'~n to the judge.
';-' ~
4. Write down the answers to questions you agree on. 'i·~·-~f~
·R:~ ~~~
.,·~·~ a38
5. Get the signatures fo r the verdict certificate. i;~v;})

6. Notify the bail iff that you have reached a ve~d~...~

Does everyone understand the duties of the pr~~~-injWr?
~~~ rr not. please tell me now.
INSTRUCT IONS FOR SIGNING T HE VERDif:J~~lFlCATE
-~~~~
You may answer the questions in this ~)t'(r~ a vote of ten jurors. The same ten jurors
must agree on every answer in the charge. l!Us@s you cannot have one group of ten jurors
agree on one answer and a different group:~~ JUrors agree on another answer. ff ten jurors
agree on every answer, those ten jurors s.~ }~verdict. ff eleven jurors agree on every answer,
those eleven jurors sign the verdict,,J 1 ~ twelve of you agree on every answer, you are
unanimous and only the presidingju{' . the verdict.
·f '
All jurors should delibe~t~ every question. You may end up with all 12 of you
agreeing on some answers, w~·~ly ten or eleven of you agree on other answers. When you
sign the verdict, however, qot;; · e ten who agree on every answer will sign the verdict.
l ~

Does cvcryone~u~~nd these instructions? If not, please tell me now.

Please rei~{
{.~1'
~~you should not discuss this case with anyone, not even with other
members of the l. ·; ~nless all of you are present and assembled in tbe jury room. Should
anyone atlemP.t•..!!.; · k to you about the case before the verdict is returned, whether at the
courthouse, a~ orne, or elsewhere, please inform the judge of this fact.

1i/tltM~~
MICHAEL GOMEZ
JUDGE PRESIDING

22

398
 VERDICT CERTIFICATE

Check One:

Our verdict is unanimous. All twelve of u~ have agreed to each and every answer.
The presiding juror has signed the certificate for all twelve of us.

Signature of Presiding Juror Printed Name q_~:R~~~ Juror
r- ·~ {(~

Our verdic~
is not unani~ous.
Eleven of us have agre:d:,t~~~affli every answer
and have s1gned the cerllficate below. .>~/ o~

Our verdi~t is not unani.mous. Ten of us have 1'fl~;~;ji,ch nnd every answer
and have s1gned the certific-ate below. ,.,:·,...j ~
.,....::-, ~
~.{!d i{j)~

z:z: .
~·· ()~
SIGNATURE ~.:~~--..~INTEDNAME
. .-..;, @> ('
1. ?~-.. )~ .
•,)Q',iJ. ~/1--.:rwr.
,. ·?r.:. •
f._;
..
_ .
/7-:? /
'YA 1 ,~,
2. ~ ;-~(~ ~ 'Jd.l)qW) sh~fffL
~ _1 ';) I<-. ._~- -.. -'(()) ·-:---.... b.. --:;, C"' ' "':\ d-
"J. ~»lAO f,"--01 U-e S o.i ,;~~ t__..J r ' Y- :::. 1-'l .A }-1 A I) r S!.i..)
7. ;G--))\>:{ ©5
4. . r·~