United States District Court, E.D. Louisiana
ASSOCIATED TERMINALS OF ST. BERNARD, LLC
POTENTIAL SHIPPING HK CO. LTD. ET AL.
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE.
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.
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
the course of just over two days, the Court held a bench
trial in this case. This opinion is the result.
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
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).
the LHWCA provides a longshoreman such as Ford 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”).
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; and 3) the ‘duty to
intervene.'” 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.
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”).
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
Howlett, 512 U.S. at 98 (quoting Federal Marine
Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404,
416-17 n.18 (1969)).
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.
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
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.
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
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.
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. 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.
record-titled “Examination of Lifting
Appliances”-documented third party inspections of the
ship's cranes. 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
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.
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
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
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.
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. 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.
process of conducting his inspection, Addison completed a
checklist.On the checklist, Addison marked
“Wire Ropes” as being in “Safe
Condition.”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. He testified that rust on
cranes' wire ropes is not commonly observed, as the wire
ropes are usually greased.
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. The Court
finds that the maximum number of coils offloaded at any one
time on the day of the incident was twelve.
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
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
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.” 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.
described the force of the load hitting the barge as
equivalent to “dropping a school bus off of
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.” 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
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. 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.
Campana concluded, “without a doubt, ” that the
wire rope had not been properly maintained. Indeed, he
testified that he noticed multiple “telltale indicators
that there's a problem” with the no. 2 crane's
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. 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.”
Campana also determined that some areas of the wire rope did
not have any grease at all. He testified that the amount
of rust visible on the outside of the no. 2 crane's wire
rope was “unusual.” 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.”
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.” Moreover, he opined that
the individual wire strands composing the no. 2 crane's
wire rope were brittle and that its center was “totally
Campana testified that he had never seen a wire rope in as
poor condition at any other time in his career. 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.
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,  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
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.
event, Captain Campana substantiated his testimony by
reference to a post-incident photograph of the wire
rope. The Court finds Captain Campana's
description of the degree of rust on the wire rope to be more
admitted at trial also showed that the no. 2 crane's wire
rope dated to 2011. 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. According to Captain Campana, this
four-year lifetime is the “industry
Campana was unfamiliar with the usage history of the no. 2
crane's wire rope. 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. 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
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. 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
further testified that this four-year recommendation does not
turn on usage. The Court accepts Zemo's testimony
on this point to be credible.
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.
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.
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.
on this evidence, the Court concludes that Addison's
conduct on the day of the incident was reasonable under the
respect to the effect of classification society 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.”
indicates that, prior to the incident, Lloyd's Register
last inspected the no. 2 crane on October 30,
2016. At the time, a representative from
Lloyd's Register certified that “no defects
affecting [the] safe working condition [of the no. 2 crane]
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 §
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.
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.
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.
to the determination of Ford's damages that the Court now
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).
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
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.”).
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.
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
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.
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. 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
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.)).
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.
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
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).
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.” 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
admitted at trial shows that Ford's ankle and knee pain
dissipated within a week of the incident. Further, Ford
agreed on cross-examination that the pain in his scrotum
dissipated “fairly quickly” after the
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.
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.”
10, 2017, Ford began treatment with Dr. William A. Brennan, a
neurosurgeon based in Lafayette, Louisiana. Ford has since
been treated by Dr. Brennan.
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. Ford
testified that, instead, ...