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Associated Terminals of St. Bernard, LLC v. Potential Shipping HK Co. Ltd.

United States District Court, E.D. Louisiana

March 28, 2018

ASSOCIATED TERMINALS OF ST. BERNARD, LLC
v.
POTENTIAL SHIPPING HK CO. LTD. ET AL.

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.

         On May 19, 2017, longshoremen employed by Associated Terminals of St. Bernard, LLC (“Associated Terminals”) boarded the M/V UNISON POWER (“ship”) and proceeded to use the ship's no. 2 crane to offload wire coil from the ship to a barge anchored alongside the ship. In the process of moving these coils, the no. 2 crane's wire rope snapped, causing a load of wire coils weighing tens of tons to fall onto the barge. Jamaal Ford (“Ford”)-who was employed as a forklift operator for Associated Terminals at the time and was working on the barge that day-alleges that the load's impact with the barge propelled him forward into the forklift that he was mounting at the time, thereby injuring him.

         Ford intervened in this case and asserted a negligence claim under the Longshore and Harbor Worker's Compensation Act (“LHWCA”) against Potential Shipping HK Co. Ltd, in personam and as owner of the M/V UNISON POWER, in rem (“Potential Shipping”). Potential Shipping denies liability and contests the extent of Ford's injuries.

         Over the course of just over two days, the Court held a bench trial in this case. This opinion is the result.

         I.

         A.

         The LHWCA “establishes a comprehensive federal workers' compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death.” Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 96 (1994).

Under [the] LHWCA, which is similar to other worker compensation schemes, an employer's liability to an employee who is injured on the job is essentially limited to payment of compensation. The LHWCA also allows the employee to recover for injuries resulting from the fault of third parties. The employee need not choose whether to receive compensation or to recover damages against a third person; he can do both.

Fontenot v. Dual Drilling Co., 179 F.3d 969, 972 (5th Cir. 1999) (internal citations omitted).

         Thus, the LHWCA provides a longshoreman such as Ford[1] with an avenue through which to “seek damages in a third-party negligence action against the owner of the vessel on which he was injured.” Howlett, 512 U.S. at 96. “The right of ship repairers, longshoremen, and other persons covered by the [LHWCA] to sue a vessel owner for negligence arises exclusively under 33 U.S.C. § 905(b), ” which Congress added to the LHWCA in 1972. Garry v. Exxon Mobil Corp., No. 03-0791, 2004 WL 2367706, at *2 (E.D. La. Oct. 19, 2004) (Africk J.), aff'd, 150 Fed. App'x 363 (5th Cir. 2005) (per curiam); see Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 165 (1981) (observing that, with the 1972 amendments to the LHWCA, “the longshoreman's right to recover for unseaworthiness was abolished” and “his right to recover from the shipowner for negligence was preserved in § 905(b), which provided a statutory negligence action against the ship”).

         Section 905(b) provides, in relevant part:

In the event of injury to a person covered under [the LHWCA] caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of [Title 33 of the United States Code], and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under [the LHWCA].

In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the Supreme Court “limited the duties vessel owners owe under § 905(b).” Kirksey v. Tonghai Maritime, 535 F.3d 388, 391 (5th Cir. 2008). Specifically, the Scindia Court “outlined three duties [that] shipowners owe to longshoremen: 1) the ‘turnover duty, ' relating to the condition of the ship upon the commencement of stevedoring operations; 2) the duty to prevent injuries to longshoremen in areas remaining under the ‘active control' of the vessel;[2] and 3) the ‘duty to intervene.'”[3] Moore v. M/V ANGELA, 353 F.3d 376, 380 (5th Cir. 2003) (quoting Howlett, 512 U.S. at 98). This case implicates the turnover duty.

         “The turnover duty applies to the shipowner's obligation before or at the commencement of the stevedore's activities.” Kirksey, 535 F.3d at 392. Worded differently, “[t]he ‘turnover duty' relates to the condition of the ship upon the commencement of stevedoring operations.” Moore, 353 F.3d at 380 (citing Scindia, 451 U.S. at 167); see also Howlett, 512 U.S. at 99 (pointing out that “[m]ost turnover cases brought under § 5(b) concern the condition of the ship itself or of equipment on the ship used in stevedoring operations”).

         “This duty places two responsibilities on the vessel owner.” Kirkley, 535 F.3d at 392. First, the owner

must “exercise ordinary care under the circumstances” to turn over the ship and its equipment and appliances “in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care” to carry on cargo operations “with reasonable safety to persons and property.”

Howlett, 512 U.S. at 98 (quoting Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17 n.18 (1969)).

         Second, the vessel owner's turnover duty “extends to warning the stevedore of hazards with respect to [ ] equipment known to the vessel that would likely be encountered by the stevedore and would not be obvious to him.” Moore, 353 F.3d at 381. This duty to warn is a “narrow one”: it “attaches only to latent hazards, defined as hazards that are not known to the stevedore and that would be neither obvious to nor anticipated by a skilled stevedore in the competent performance of its work, ” and it “encompasses only those hazards that are known to the vessel or should be known to it in the exercise of reasonable care.” Howlett, 512 U.S. at 105 (internal quotation marks omitted). It “does not include dangers which are either: (1) open and obvious or (2) dangers a reasonably competent stevedore should anticipate encountering.” Kirkley, 535 F.3d at 392.

         “[I]f the shipowner had actual knowledge of a condition which presented an unreasonable danger to a longshoreman and actual knowledge that he could not rely on the stevedore to correct [or avoid] the condition, then the shipowner, not the stevedore, is liable to the longshoreman.” Hernandez v. M/V Rajaan, 841 F.2d 582, 586 (5th Cir.) (citing Scindia, 451 U.S. at 175), opinion corrected on denial of reh'g, 848 F.2d 498 (5th Cir. 1988). “If the condition existed from the outset [of cargo operations], the shipowner is charged with actual knowledge of the dangerous condition and has a duty to warn the stevedore and the longshoremen if the defect is hidden.” Id.

         Ford bears the burden of proving by a preponderance of the evidence that Potential Shipping violated its turnover duty. Cf. Ponce ex rel. Estate of Ponce v. M/V ALTAIR, 493 F.Supp.2d 880, 893 (S.D. Tex. 2007); Crochet v. ABC Ins. Co., 777 F.Supp. 498, 504 (W.D. La. 1991). “[M]erely proving that an unsafe condition existed at the time of the accident is insufficient to establish liability.” Hudson v. Schlumberger Tech. Corp., 452 Fed. App'x 528, 534 (5th Cir. 2011) (quoting Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 166 (5th Cir.1990). “[T]he defendant has not breached its duty to turn over a safe vessel if the defect causing the injury is open and obvious and one that the longshoreman should have seen.” Greenwood v. Societe Francaise De, 111 F.3d 1239, 1246 (5th Cir. 1997) (quoting Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir. 1992)) (alteration in original). Further, “[i]f the longshoreman knew of the defect, then it is considered open and obvious.” Id. “That being said, even if a hazard is ‘open and obvious, ' a vessel owner may still be liable where the employee has no alternative but to work in the unsafe condition or leave the job.” Hudson, 452 Fed. App'x at 534.

         B.

         After reviewing the evidence admitted at trial, the Court finds that Potential Shipping breached its turnover duty and that this breach was a proximate cause of the injuries to Ford resulting from the incident. Cf. Moore, 353 F.3d at 380-83.

         i.

         Kevin Fos (“Fos”), an Associated Terminals superintendent who oversaw Associated Terminals' cargo operations on the ship on the day of the incident, testified that he reviews a vessel's certification and inspection records prior to the use of a vessel's equipment by the longshoremen. He stated that he relies on the accuracy of such records to ensure that a vessel's equipment is in safe working condition.

         With respect to the ship, one of these records-titled “Certificate of Test and Thorough Examination of Lifting Appliances (L.A.2)”-documented the safe working load for the cranes on the ship.[4] The safe working load is the amount of tonnage that a crane can safely lift when in field operation. In this case, the no. 2 crane's safe working load was 30.7 tons.[5]

         Another record-titled “Examination of Lifting Appliances”-documented third party inspections of the ship's cranes.[6] Lloyd's Register Classification Society (China) Co., Ltd. (“Lloyd's Register”) conducted a five-year inspection of the no. 2 crane on October 30, 2016, and it did not find any defects “affecting [the crane's] safe working condition.”[7]

         Fos testified that no documents provided to him by the ship's crew, nor anything any member of the crew said to him, indicated any problems with the no. 2 crane. The Court finds his testimony to be credible.

         On the day of the incident, Associated Terminal's Larry D. Addison (“Addison”) operated the no. 2 crane. Addison testified that he has been a crane operator for 17 years, seven years of which have been with Associated Terminals. According to Fos, Addison is an experienced crane operator.

         Addison testified that, prior to using the no. 2 crane, he conducted a visual inspection of the crane. He stated that this inspection is a “critical” function of his job.[8]

         Concerning the no. 2 crane's wire rope, Addison stated that he visually examined the wire on the spool, as well as of the visible portion of the wire hanging from the boom. He also stated that, as part of his examination, he lowered the boom of the crane to 45 degrees and then lowered the wire rope to the bottom of the hatch on the ship where the wire coils to be offloaded were stored.

         Addison testified that he observed a significant amount of grease on the no. 2 crane's wire rope, but he did not observe any fraying or rusting.[9] He also stated that he did not observe any kinks in the wire rope. According to Addison, the no. 2 crane's wire rope did not look any different than any of the other crane wires that he had inspected. Addison further testified that the no. 2 crane's safe working load-30.7 tons-was written on the crane's side.

         In the process of conducting his inspection, Addison completed a checklist.[10]On the checklist, Addison marked “Wire Ropes” as being in “Safe Condition.”[11]Addison testified that, if he had observed a “significant amount of rust, ” then he likely would have noted it on the checklist, as it would indicate a possibility of failure.[12] He testified that rust on cranes' wire ropes is not commonly observed, as the wire ropes are usually greased.

         Addison then began offloading the wire coils, moving them from the ship to a barge adjacent to the ship. Addison recalled using the crane to offload several loads of wire coils before the incident occurred. He testified that, at some point, the number of wire coils that he was offloading at any one time increased from twelve coils to fourteen coils. Addison further testified that the number of coils attached to the no. 2 crane's spreader bar at the time of the incident was fourteen. However, all other evidence admitted at trial indicates that twelve wire coils were attached to the spreader bar at the time of the incident.[13] The Court finds that the maximum number of coils offloaded at any one time on the day of the incident was twelve.[14]

         Addison testified that, with respect to the load that he successfully offloaded immediately prior to the incident, he noticed what he believed to be indications that the no. 2 crane was experiencing strain. In response, Addison asked a fellow Associated Terminals' employee to verify that the load was below the crane's safe working load of 30.7 tons. He received verification that it was and he then continued to work.[15]

         At the time that Addison was moving what would be the no. 2 crane's last load of wire coils that day, Ford was on the barge. Ford testified that, as he noticed the shadow of the load move over the barge, he was in the process of mounting his forklift.

         According to Fos, who witnessed the incident, the no. 2 crane's load was stationary over the barge when the crane's wire rope snapped. Addison described the wire rope as becoming “immediately unwound.”[16] In Ford's words:

The cable snapped. That load just came barrelling [sic] down into that barge unlike anything-unlike anything you want to see in life. But the load crashed down into the barge floor. It got dark in there all of a sudden because the dirt-the particles on the floor had been lifted and suspended into the atmosphere upon, you know, that kind of weight from that kind of distance striking the barge floor. So it became dark inside of there immediately.[17]

         Ford described the force of the load hitting the barge as equivalent to “dropping a school bus off of Winn-Dixie.”[18]

         Ford testified that, when the load from the no. 2 crane hit the barge, he was thrown forward into the forklift. Immediately after the incident, Ford reported injuries to his ankle and knee, and he received treatment from Prime Occupational Medicine (“Prime”), “the company's doctor.”[19] Then, according to Ford, “later on that day, as time progressed, I started feeling pain in my scrotum as well as my back and in my neck.”[20]

         ii.

         Captain Ronald L. Campana (“Captain Campana”) investigated the incident on behalf of Associated Terminals, arriving on the scene within an hour-and-a-half of the incident. Captain Campana works as a marine surveyor, and he has been representing stevedores in the New Orleans area since 1985.[21] Captain Campana testified that he has investigated crane accidents on vessels about 50-to-100 times during the course of his career. Based on his background and experience, the Court qualified Captain Campana as an expert in marine maintenance, inspection and safety, and marine surveying and casualty inspection.

         Captain Campana concluded, “without a doubt, ” that the wire rope had not been properly maintained.[22] Indeed, he testified that he noticed multiple “telltale indicators that there's a problem” with the no. 2 crane's wire rope.[23]

         For one, Captain Campana determined that the ship's crew had not removed hardened grease from the wire rope before rubbing fresh grease on it, which prevented the fresh grease from penetrating the wire rope and lubricating the wire rope's core.[24] According to Captain Campana, the greasing of the wire rope and corresponding lubrication of the inner core is a critical component of wire rope maintenance, because “[y]ou don't want the inner wires [of the rope] to become brittle.”[25]

         Captain Campana also determined that some areas of the wire rope did not have any grease at all.[26] He testified that the amount of rust visible on the outside of the no. 2 crane's wire rope was “unusual.”[27] He explained that, “[i]f the wire is properly lubricated, you're not going to find rust” and that “[r]ust is an indication that there's no lubrication, that the corrosive atmosphere of sea managed to get into the steel and start rusting it.”[28]

         Captain Campana further testified that he “could see a physical reduction” in the diameter of portions of the wire strands-“one of the telltale signs that the wire has been under severe stress.”[29] Moreover, he opined that the individual wire strands composing the no. 2 crane's wire rope were brittle and that its center was “totally dry.”[30]

         Captain Campana testified that he had never seen a wire rope in as poor condition at any other time in his career.[31] He also testified that the ship did not have a spare wire on board, a situation that he had “never seen” in his career as a marine surveyor up to that point.

         The Court finds Captain Campana's testimony as to the physical condition of the no. 2 crane's wire rope to be credible. With respect to the issue of rust, the Court recognizes that Captain Campana's testimony regarding visible rust on the no. 2 crane's wire rope appears in conflict with other testimony offered at trial. Specifically, based on the checklist that he completed before using the no. 2 crane on May 29, 2017, [32] Addison testified that he “didn't basically see any rust” on the no. 2 crane's wire rope during his inspection of the crane, which included a visual inspection of the wire rope on the crane's spool and the portion of the wire rope that became visible upon lowering the boom into the ship's hatch.[33]

         However, Addison's testimony does not necessarily conflict with the testimony offered by Captain Campana. It is possible that the rust visible to Captain Campana during his post-incident inspection was not visible to Addison. In other words, Addison and Captain Campana may simply be describing different portions of the no. 2 crane's wire rope.

         In any event, Captain Campana substantiated his testimony by reference to a post-incident photograph of the wire rope.[34] The Court finds Captain Campana's description of the degree of rust on the wire rope to be more convincing.

         iii.

         Evidence admitted at trial also showed that the no. 2 crane's wire rope dated to 2011.[35] Captain Campana testified that “[m]ost manufacturers” recommend replacing wire ropes on ship-mounted cranes at least every four years, assuming “normal usage” and proper maintenance.[36] According to Captain Campana, this four-year lifetime is the “industry standard.”[37]

         Captain Campana was unfamiliar with the usage history of the no. 2 crane's wire rope.[38] Further, when asked about the manufacturer's recommendation for the wire rope at issue in this case, Captain Campana testified that he has “seen this manufacturer's website” and that the website listed the wire rope's recommended lifetime as four years.[39] However, Captain Campana could not remember the name of the manufacturer until prompted by the Court to look at Exhibit 31, which lists the manufacturer as Kiswire Ltd.[40]

         In addition to Captain Campana, however, Don Zemo (“Zemo”)-a general manager at Associated Terminals who had previously been employed at Link-Belt Cranes for about 18 years, and who has experience certifying offshore cranes and training crane operators-offered testimony regarding wire rope manufacturers' recommendations as to the working life of such wire ropes. Zemo testified that every wire rope manufacturer with which he is familiar recommends replacement at least every four years.[41] When asked by the Court whether a wire rope could ever reasonably be used beyond four years, depending on usage, Zemo explained:

There are ways to inspect a cable, but you have to open them up to inspect the inside. There's two parts to a cable. There's the outer strands and then there's the inner core. So you cannot see the inner core. So the only way you can do it is either cut a piece off and get it pull tested or you can actually open it up and look at it. But all manufacturers recommend no more than four years.[42]

         He further testified that this four-year recommendation does not turn on usage.[43] The Court accepts Zemo's testimony on this point to be credible.

         iv.

         With respect to any negligence on the part of Associated Terminals, Captain Campana determined that the longshoremen did not exceed the no. 2 crane's safe working load. Further, Zemo testified that Associated Terminals' policy limiting the use of cranes to 33% of the safe working load did not apply to the no. 2 crane in this case and, therefore, the longshoremen could use the crane up to lift capacity.

         Fos testified that, if an Associated Terminals crane operator experiences strain-i.e., if the crane is having trouble lifting a load-then the operator should advise the foreman and/or the supervisor. Fos stated that Addison never reported any strain with the no. 2 crane.

         Yet Zemo-who, again, has experience certifying offshore cranes and training crane operators-testified that some amount of strain on a crane is not necessarily problematic. Further, Addison testified that, upon noticing what he believed to be signals that the no. 2 crane was experiencing strain, he took steps to confirm that the size of the loads that he was moving from the ship to the barge did not exceed the safe working load. Specifically, he asked a fellow Associated Terminals' employee to verify that the load was below the crane's capacity. He received verification that it was and he then continued to work.

         Based on this evidence, the Court concludes that Addison's conduct on the day of the incident was reasonable under the circumstances.

         v.

         With respect to the effect of classification society[44] certification on Potential Shipping's liability, Captain Campana testified that Lloyd's Register is the classification society for the ship. He noted that Lloyd's Register has an “excellent reputation.”[45]

         Evidence indicates that, prior to the incident, Lloyd's Register last inspected the no. 2 crane on October 30, 2016.[46] At the time, a representative from Lloyd's Register certified that “no defects affecting [the] safe working condition [of the no. 2 crane] were found.”[47]

         The Fifth Circuit has recognized that “[t]he societies' surveys and certificate system are essential to maintaining the safety of maritime commerce, yet their activities should not derogate from shipowners' and charterers' nondelegable duty to maintain seaworthy vessels.” Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 535 (5th Cir. 2003); see also Vloeibare Pret Ltd. v. Lloyd's Register N. Am., Inc., 606 Fed. App'x 782, 784 (5th Cir. 2015) (noting the Fifth Circuit's position that “shipowners generally have the final responsibility to ensure that a vessel is seaworthy”). Thus, the Court concludes that certification by Lloyd's Register is not conclusive of Potential Shipping's liability under § 905(b).

         Indeed, in this case there is no indication that Lloyd's Register, when its representative inspected the ship in 2016, considered whether the fact that the no. 2 crane's wire rope had been in use for over four years created a hazard. In light of Zemo's credible testimony as to why wire rope manufacturers universally recommend wire rope replacement at least every four years, the Court does not find Lloyd's Register's 2016 inspection of the ship to be particularly probative. The condition of the no. 2 crane's wire rope resulted in a proverbial accident waiting to happen-one that came to fruition on May 19, 2017.

         vi.

         Based on the evidence admitted at trial, the Court finds that the no. 2 crane was in a defective condition at the outset of Associated Terminals' cargo operations on May 19, 2017 due to the condition of its wire rope, in particular the wire rope's core. The Court also finds that the no. 2 crane's defective condition was not open and obvious, and that a reasonable and experienced longshoreman would not have noticed it. The Court thus concludes that Potential Shipping breached its turnover duty.

         Further, the Court finds that the breach was a proximate cause of Ford's injuries resulting from being thrown forward into the forklift when the load from the no. 2 crane hit the barge on which Ford was working. Therefore, Ford is entitled to damages to compensate him for these injuries.

         It is to the determination of Ford's damages that the Court now turns.

         II.

         A.

         “When Congress enacted section 905(b), it neither limited the available remedies, nor created a new or broader admiralty remedy.” Rutherford v. Mallard Bay Drilling L.L.C., No. 99-3689, 2000 WL 805230, at *2 (E.D. La. June 21, 2000) (Vance, J.). “Rather, it ‘merely preserve[d] an injured worker's right to recover damages from third parties in accordance with nonstatutory negligence principles.'” Id. (quoting Parker v. South La. Contractors, Inc., 537 F.2d 113, 118 (5th Cir. 1976)) (alteration in original).

         In other words, “[a] plaintiff's right to damages for negligence pursuant to the LHWCA section 905(b) arises under the general maritime law.” Lucas v. Terral Riverservice, Inc., No. 01-0704, 2002 WL 1822934, at *2 (E.D. La. Aug. 8, 2002) (Livaudais, J.); see also Stevenson v. Point Marine, Inc., 697 F.Supp. 285, 288 (E.D. La. 1988) (Beer, J.) (“In the LHWCA context, a longshoreman's action against a vessel owner for negligence arises under the general maritime law-not under the LHWCA, 33 U.S.C. § 905(b). This is well-settled.”). As such,

[i]n actions brought under § 905(b), an injured LHWCA covered employee may recover those items of damages which are recoverable under the general maritime law, including monetary recovery for past and future loss of earning capacity and wages, past and future medical expenses, and pain and suffering resulting from an injury caused by the defendant's negligence.

Baham v. Nabors Drilling USA, LP, 721 F.Supp.2d 499, 516 (W.D. La. 2010), aff'd sub nom. Baham v. Nabors Offshore Corp., 449 Fed. App'x 334 (5th Cir. 2011) (per curiam); cf. Daigle v. L & L Marine Trans. Co., 322 F.Supp.2d 717, 730 (E.D. La. 2004) (Fallon, J.) (“Under the Jones Act and general maritime law, monetary recovery is allowed for loss of earning capacity, medical expenses, and pain and suffering resulting from an injury caused by negligence and/or unseaworthiness.”).

         “Past lost wages are usually measured by the actual wage losses incurred by the plaintiff from the date of the accident to the date of trial.” Baham, 721 F.Supp.2d at 516 (citing Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-15.1 (4th ed. 2004)). “The sum is determined by calculating the amount of money the plaintiff would have earned had he continued at his pre-accident employment, less any wages he earned since the accident.” Id. (citing Blaauw v. Superior Offshore International, LLC, No. 05-1380, 2008 WL 4224808, at *17 (W.D. La. Sept. 10, 2008) (Hill, M.J.)). A court should also subtract “any wages that [a plaintiff] could have earned despite his physical condition.” Ledet v. Smith Marine Towing Corp., No. 10-1713, 2011 WL 1303918, at *12 (E.D. La. Apr. 4, 2011) (Vance, J.), aff'd, 455 Fed. App'x 417 (5th Cir. 2011) (per curiam). “In the maritime context, an award for lost wages must be based on after-tax earnings.” Id.

         “An award for impaired earning capacity is intended to compensate the worker for the diminution in that stream of income.” Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533 (1983); see also Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 169 (5th Cir. 1990) (quoting Jones & Laughlin Steel Corp. in a § 905(b) case). “The paramount concern of a court awarding damages for lost future earnings is to provide the victim with a sum of money that will, in fact, replace the money that he would have earned.” Martinez v. Offshore Specialty Fabricators, Inc., 481 Fed. App'x 942, 949 (5th Cir. 2012) (quoting Culver v. Slater Boat Co., 722 F.2d 114, 120 (5th Cir.1983) (en banc), abrogated on other grounds by Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330 (1988)).

         “In calculating damages for [future lost wages], it is assumed that if the injured party had not been disabled, he would have continued to work, and to receive wages at periodic intervals until retirement, disability, or death.” Jones & Laughlin Steel Corp., 462 U.S. at 533. “The base figure used to calculate future wage loss is the difference between what a person could have earned ‘but for' the accident and what he is able to earn upon returning to work in his partially disabled state.” Masinter v. Tenneco Oil Co., 867 F.2d 892, 899 (5th Cir. 1989), mandate recalled & modified, 934 F.2d 67 (5th Cir. 1991); see also Culver, 722 F.2d at 117 (explaining that the first three steps in calculating an award for future lost wages are “estimating the loss of work life resulting from the injury or death, calculating the lost income stream, [and] computing the total damage”). This difference between an individual's pre- and post-accident earning capacity should account for “income incidental to work, such as fringe benefits, ” as well as “income tax and work expenses.” Id.; see also Baham, 721 F.Supp.2d at 515 (“Future lost income must be computed on net after-tax value.”). Finally, a court must discount this difference to present value. Daigle, 322 F.Supp.2d at 731.

         The Court may also award damages for lost household services. See, e.g., Ponce, 493 F.Supp.2d at 888-89 (summarizing evidence concerning lost household services). To do so, the record must contain evidence of the household services that a person performed prior to sustaining his injury, as well as evidence that the person can no longer perform those services.[48] Cf. Hernandez, 841 F.2d at 590 (“[T]he trial court is not at liberty to grant damages for lost household services in the absence of any evidence that Hernandez performed household services in the past.”).

         Courts calculate past medical expenses based on the amounts actually expended for medical care. See, e.g., Koch v. United States, No. 13-205, 2015 WL 4129312, at *7 (E.D. La. July 7, 2015) (Morgan, J.), aff'd, 857 F.3d 267 (5th Cir. 2017). After all, “agreed-upon past expenses can be readily calculated, ” and the Court can then assess whether those expenses reflect the usual and customary charges in a given market for the care received. Id. n.48 (quoting Tucker v. Cascade Gen., Inc., No. 09-1491, 2014 WL 6085829, at *27 (D. Or. Nov. 13, 2014) (Acosta, M.J.)).

         With respect to future medical expenses, courts only award damages for such expenses when it is reasonably likely that a plaintiff will incur them in the future. Cf. Ledet, 2011 WL 1303918, at *15 (“As to future medical expenses, Dr. Ulm testified that, at this point, the most likely treatment for Ledet would be an implantable pain pump. . . . [H]owever, the Court finds its too speculative that Ledet will, in fact, have the pain pump installed.”). Further, as with awards for future lost wages, awards for future medical expenses are discounted to present value. See id.

         “An award for pain and suffering may include a sum for mental anguish and physical discomfort, and for the mental and physical effects of the injury on the plaintiff's ability to engage in those activities which normally contribute to the enjoyment of life.” Baham, 721 F.Supp.2d at 515 (citing Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5-15.3 (4th ed. 2004)). “Damages for pain and suffering are not subject to precise measurement.” Id. “[A]ny amount awarded for pain and suffering depends to a great extent on the trial court's observation of the plaintiff and its subjective determination of the amount needed to achieve full compensation.” Hyde v. Chevron U.S.A., Inc., 697 F.2d 614, 632 (5th Cir.1983). “Each award for pain and suffering depends heavily on its own facts.” Hernandez, 841 F.2d at 590.

         As with liability, Ford carries the burden of proving his damages by a preponderance of the evidence. See Pizani v. M/V Cotton Blossom, 669 F.2d 1084, 1088 (5th Cir. 1982) (“The plaintiff bears the burden of proof to show the amount, as well as the fact, of damages.”). Such damages must be more than “speculative or purely conjectural” to justify a court's award. Masinter v. Tenneco Oil Co., 929 F.2d 191, 194 (5th Cir. 1991).

         B.

         i.

         As the Court previously explained, Ford testified that, when the load from the no. 2 crane hit the barge, he was thrown forward into the forklift. Immediately after the incident, Ford reported injuries to his ankle and knee, and he received treatment from Prime, “the company's doctor.”[49] Then, according to Ford, “later on that day, as time progressed, I started feeling pain in my scrotum as well as my back and in my neck.”[50]

         Evidence admitted at trial shows that Ford's ankle and knee pain dissipated within a week of the incident.[51] Further, Ford agreed on cross-examination that the pain in his scrotum dissipated “fairly quickly” after the incident.[52]

         From the day of the incident until June 9, 2017, Ford received treatment from Prime for injuries stemming from the incident. Ford also visited the emergency room at Ochsner Medical Center-West Bank Campus on one occasion during such time period, complaining of testicular pain.

         Then, on June 9, 2017, Ford ended his treatment with Prime. According to a Prime clinical note bearing that Dated: “Physical exam abruptly ended at patient's request and against medical advice. Stated he just wants a copy of his medical records and wants to go.”[53]

         On June 10, 2017, Ford began treatment with Dr. William A. Brennan, a neurosurgeon based in Lafayette, Louisiana. Ford has since been treated by Dr. Brennan.

         According to Ford, he learned of Dr. Brennan from a list of recommended physicians provided to him by his counsel in this case. Ford has never made an effort to locate a treating physician in the New Orleans area, where he lives.[54] Ford testified that, instead, ...


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