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Lawrence v. Great Lakes Dredge & Dock Co., L.L.C.

United States District Court, E.D. Louisiana

July 26, 2018

EARL K. LAWRENCE, JR.
v.
GREAT LAKES DREDGE & DOCK COMPANY, L.L.C. OF LOUISIANA

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Before the Court is plaintiff Earl K. Lawrence, Jr.'s (“Lawrence”) motion[1] for reconsideration. Lawrence urges the Court to reconsider its order[2] granting defendant Great Lake Dredge & Dock Company, L.L.C.'s (“GLDD”) motion[3] in limine to exclude certain opinions from Lawrence's expert economist, Shael N. Wolfson (“Wolfson”). For the following reasons, the motion is denied.

         I.

         This case arises under the Jones Act. In December 2015, Lawrence was injured while working as a seaman aboard the M/V TEXAS JUNIOR (“the vessel”) as a GLDD employee.[4] He alleges that his injuries are the direct result of GLDD's negligence and the vessel's unseaworthiness.[5]

         GLDD filed a motion in limine challenging the admissibility of Wolfson's anticipated expert testimony.[6] In his expert report, Wolfson calculated Lawrence's “diminution of earning capacity and associated economic impairment” as a result of the December 2015 incident and was expected to offer related testimony at trial.[7] To determine Lawrence's lost wages, Wolfson calculated his earning base using Lawrence's actual earnings in 2013-two years before he was injured.[8]

         The Court granted GLDD's motion with respect to Wolfson's testimony, concluding that he would not be permitted to testify at trial as to a lost wages calculation based solely on Lawrence's 2013 earnings.[9] Lawrence now urges the Court to reconsider its ruling “to correct legal error” and “prevent manifest injustice.”[10]

         II.

         Reconsideration of interlocutory orders is governed by Federal Rule of Civil Procedure 54(b). Namer v. Scottsdale Ins. Co., 314 F.R.D. 392, 393 (E.D. La. Apr. 5, 2016) (Africk, J.) (citing McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014)). Rule 54(b) states that “any order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed. R. Civ. Pro. 54(b). Under Rule 54(b), a district court may “reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017) (per curiam) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).

         Compared to Rule 59(e) of the Federal Rules of Civil Procedure-which governs motions to alter or amend final judgments-the Fifth Circuit has explained that Rule 54(b)'s standard is “less stringent” and “more flexible.” Id. at 336-37. For example, unlike in a Rule 59(e) determination, a court conducting a Rule 54(b) inquiry may consider new arguments that could have been previously raised. See McClendon v. U.S., 892 F.3d 775, 781 (5th Cir. 2018).[11]

         When deciding whether to grant a Rule 54(b) motion, courts must “construe the procedural rules with a preference toward resolving the case on the merits” and weigh “the interests of justice.” Id. at 338. However, courts should exercise their power “sparingly in order to forestall the perpetual reexamination of orders and the resulting burdens and delays, ” which disserve the interests of justice. Ha Thi Le v. Lease Fin. Grp., LLC, No. 16-14867, 2017 WL 2911140, at *2 (E.D. La. July 7, 2017) (Africk, J.) (quoting Castrillo v. Am. Home Mortg. Servicing Inc., No. 09-4369, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (Vance, J.)).

         District courts have generally considered a number of factors when engaging in a Rule 54(b) analysis, including whether the moving party “demonstrates the motion is necessary to correct manifest errors of law or fact upon which the judgment is based, ” whether an “intervening change in the controlling law” has occurred, whether the moving party presents the district court with new evidence, and “whether the motion is necessary in order to prevent manifest injustice.” See Castrillo, 2010 WL 1424398 at *4 (considering Rule 59(e) factors while performing the Rule 54(b) inquiry).

         III.

         Lawrence argues that the Court's ruling “limits a Jones Act seaman . . . from presenting evidence to the jury that his personal earnings capacity should be based on the 2013 figure.”[12] This is a mischaracterization of the Court's order. First, Lawrence overgeneralizes the order, which simply prohibited this particular expert from testifying about this particular calculation because the calculation's factual foundation is contrary to law.[13]

         Second, the Court never precluded plaintiffs generally from proffering expert testimony based on a single year's earnings other than the year in which a plaintiff was injured. To the contrary, the Court explained that it could “imagine situations in which Wolfson's use of plaintiff's 2013 earnings could be appropriate.”[14] However, Lawrence's circumstances do not fall within any of those situations.[15] He has yet to offer any “suggested facts that warrant [his] approach, ” which runs counter to the traditional calculation method set out in Culver v. Slater Boat Co.[16] 722 F.2d 114, 117 (5th Cir. 1983), cert. denied, 467 U.S. 1252 (1984) (hereinafter “Culver II”) (“[C]alculation of lost income stream begins with the gross earnings of the injured party at the time of the injury.”); see also Randolph v. Laeisz, 896 F.2d 964, 967 (5th Cir. 1990) (“Culver II requires the court to use [the plaintiff's] gross earnings at the time of the injury.”).

         According to Lawrence, the law permits him to present evidence to a jury to demonstrate that “he had the capacity to earn an amount equivalent of the 2013 income figure but for this accident” in light of the inconsistency in his income levels between 2012 and 2015.[17] The Fifth Circuit has permitted departures from Culver II's general rule when earnings data is inconsistent, see In re Parker Drilling Offshore USA LLC, 323 Fed.Appx. 330, 335 (5th Cir. 2009), and the Court agrees with Lawrence that his earnings data is inconsistent. For example, the difference between the amount Lawrence earned in 2013 and the amount he earned in 2015 (annualized) is approximately $28, 000. See, e.g., Nelson v. Cooper T. Smith Stevedoring Co., Inc., No. 12-2890, 2013 WL 4591362, at *1 (E.D. La. Aug. 28, 2013) (Vance, J.) (concluding the plaintiff had an “inconsistent work history” considering, among other things, he held multiple jobs with “varying rates of pay in the years before his accident”) (citation omitted); Daigle v. L & L Marine Trans. Co., 322 F.Supp.2d 717, 731 (E.D. La. June 14, 2004) (Fallon, J.) (noting that “[m]arine work is not as predictable as shore side work”; summarizing the plaintiff's earnings for 1999, 2000, and 2001 as approximately $79, 000, $63, 000, and $31, 000 respectively; and annualizing his income from the year he was injured to estimate his earning capacity).

         Often, permissible variations of Culver II's benchmark involve averaging a plaintiff's earnings from several prior years. See, e.g., Tran v. Abdon Callais Offshore, LLC, No. 12-999, 2014 WL 12538905, at *2 (E.D. La. Sept. 22, 2014) (Zainey, J.) (holding that “an average derived from the earnings of each plaintiff over the three previous years [was] reasonable to use in determining each injured person's earnings at the time of injury” in accordance with Culver II); In re Parker Drilling, 323 Fed.Appx. at 335 (approving the district court's calculation averaging the plaintiff's earnings over the previous five years); Nelson, 2013 WL 4591362, at *1 (“It is well-established in the Fifth Circuit that the trier of fact may rely on lost income stream calculation that is based on an average wage rate, particularly if the plaintiff has an inconsistent work history.”); Levine v. Zapata Protein (USA), Inc., 961 F.Supp. 942, 945-46 (E.D. La. Nov. 25, 1996) ...


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