United States District Court, W.D. Louisiana, Lafayette Division
RYAN R. KINNERSON
ARENA OFFSHORE, LP, ET AL
FINDINGS OF FACT AND CONCLUSIONS OF LAW
case arises from injuries Plaintiff Ryan Kinnerson
(“Kinnerson”) sustained while being transferred
in a personnel basket from a fixed offshore platform to the
M/V Miss Claire. The basket was being lowered to the vessel
by a temporary crane owned and operated by Defendant Sparrows
Offshore, LLC's (“Sparrows”). Kinnerson
alleges that, as the personnel basket approached the deck of
the M/V Miss Claire, the deckhand located on the back deck of
the M/V Miss Claire and serving as both the crane's
signalman and rigger, grabbed the basket's tagline to
control the basket's descent. When the deckhand grabbed
the basket's tagline, the tagline broke, causing the
deckhand to fall backward onto the vessel's deck. The
deckhand's radio allegedly became inoperable during this
incident, so the deckhand could no longer communicate with
the Sparrows crane operator. The basket continued downward
and landed on the vessel's railing. As the basket
teetered on the railing, Kinnerson jumped out of the basket
and onto the deck of the M/V Miss Claire, sustaining severe
disabling personal injuries.
brought suit against several defendants, including Arena
Offshore, LP (“Arena”), Sparrows, SeaTran Marine,
LLC (“SeaTran”), and Paloma Energy Consultants,
LP (“Paloma”). All of the Defendants except
Sparrows settled with Kinnerson. Sparrows timely answered and
denies all allegations in Kinnerson's complaint. Sparrows
avers that any injuries sustained by Kinnerson were caused by
his own negligence or the negligence of others.
matter came before the Court without a jury on August 26,
2019. The Court has carefully considered the testimony of all
the witnesses, the exhibits entered into evidence during
trial, and the record. Pursuant to Rule 52(a) of the Federal
Rules of Civil Procedure, the Court hereby enters the
following findings of fact and conclusions of law. To the
extent that any findings of fact may be construed as
conclusions of law, the Court adopts them as such. To the
extent that any conclusions of law constitute findings of
fact, the Court adopts them as such.
FINDINGS OF FACT
and prior to May 25, 2015, Kinnerson was employed by
Oceaneering International, Inc. (“Oceaneering”)
as a technician aboard Arena's fixed offshore oil
platform located on the Outer Continental Shelf in the Gulf
of Mexico off the coast of Louisiana. The Arena platform was
known as the Eugene Island 338 platform. See Tr. at
3 ll. 14-18; 8 ll. 10-12. See also R. Doc. 165 at 2.
Arena decided to drill a new well from the platform and hired
several contractors to furnish services, personnel, and
equipment to perform the drilling and construction work.
Sparrows had a construction agreement with Arena to provide a
crane with an operator during the construction work on the
platform. R. Doc. 165 at 2.
SeaTran provided transportation services to and from the
platform using its vessel, the M/V Miss Claire. R. Doc. 165
Because of the construction work on the platform, the
standard platform crane was moved, and a substitute temporary
“Bullfrog” crane was being used to raise and
lower men and equipment on and off the platform to the M/V
Miss Claire. When a standard platform crane is in operation,
it is located near the edge of the platform so that the crane
operator can see both what is on the deck of the platform and
what is on the deck of the vessel below. The Bullfrog crane
is much larger than the standard platform crane. It has a
higher capacity (i.e. it could lift heavier weights) and was
placed near the middle of the platform so that it could reach
all sections of the platform and be used more efficiently in
the construction operation. On this occasion, the Bullfrog
crane was being used to transport men and equipment to the
M/V Miss Claire. See R. Doc. 165 at 2; Tr. at 126
ll. 23-25, 127 ll. 1-4; Pl. Tr. Ex. 34 at 153 ll. 21-23.
Bullfrog crane was being operated by Arnold Breaux, a
Sparrows employee who was in the course and scope of his
employment. Breaux is an experienced and certified crane
operator. Tr. at 35 ll. 2-13, 72 ll. 15-25, 73 ll. 1-2.
Captain of the M/V Miss Claire was Robert Weiss, an
experienced and licensed captain employed by SeaTran. Dewey
Palmer (“Palmer”) was employed by SeaTran to
serve as the deckhand on the vessel. Pl. Tr. Ex. 35 at 9 ll.
10-18, 10 ll. 4-16; Pl. Tr. Ex. 36 at 14 ll. 17-25, 15 l. 1.
seas were six to eight feet, south-southwest and winds were
20 knots south-southwest. In preparation for the personnel
basket transfer, Captain Weiss positioned his vessel with the
starboard side to the platform. This position was reasonable,
and the Captain held his position throughout the transfer.
See Pl. Tr. Ex. 35 at 15 ll. 7-17, 21 ll. 5-23.
approximately 3:45 p.m., Kinnerson and three other
individuals climbed into the personnel basket, which at the
time was located on the deck of the platform, so they could
be lowered by the Bullfrog crane from the platform deck to
the deck of the M/V Miss Claire. The deck of the platform was
about 100 feet above the deck of the M/V Miss Claire. Tr. at
125 ll. 2-9, 126 ll. 23-25; Pl. Tr. Ex. 35 at 39 ll. 2-6.
to the Bullfrog crane's placement near the middle of the
upper deck of the platform, the Bullfrog crane operator was
not able to see the personnel basket once it went below a
level about halfway between the platform deck and the vessel
below. Tr. at 74 ll. 14-24, 75 ll. 15-19.
Because of the lack of visibility of the load going down from
the platform, the transfer is known as a “blind
lift.” In a blind lift, it is necessary to have a
signalman who can see both the platform and the deck of the
vessel, so the crane operator can be guided in lowering the
personnel basket in a safe and proper manner. This is
particularly critical in rough seas and windy weather
conditions, such as those that existed at the time of the
transfer in question. See Tr. at 40 ll. 21-25, 41
ll. 1-8, 42 ll. 6-24.
this instance, Palmer, the deckhand on the M/V Miss Claire,
served as the sole signalman. There is conflicting testimony
on this point, but the Court finds that the credible
testimony (i.e. the testimony of Arnold Breaux, the crane
operator, and Captain Robert Weiss) supports the conclusion
that the sole signalman was the deckhand on the deck of the
M/V Miss Claire. Although the deckhand could communicate with
the crane operator by means of a handheld radio, they could
not see each other. Furthermore, on this occasion, Palmer had
a dual function: he was serving as a signalman directing the
crane operator with a handheld VHF radio and, at the same
time, he was serving as a rigger guiding the basket into a
proper and safe location and helping the men to safely exit
the basket. See Tr. at 42 ll. 14-24, 43 ll. 8-12.
four men climbed into the personnel basket, which was located
on the deck of the platform. Breaux, the crane operator, then
lifted the basket off the deck of the platform, swung it over
the side of the platform, and began lowering it to the
waiting vessel below. Tr. at 126 ll. 6-11, 127 ll. 1-8.
When the personnel basket was approximately 10 to 30 feet off
the deck of the vessel- and out of sight of the crane
operator-the deckhand reached up to catch the tagline
attached to the bottom of the basket so that he could guide
the basket to the proper space on the deck of the vessel. As
he pulled on the tagline in an effort to guide the basket,
the tagline-which was made of the wrong material and was in
poor condition-broke and the deckhand fell backwards to the
deck of the vessel. The personnel basket swung to the side of
the vessel and hit the rail. The deckhand's radio was
stored in his back pocket and when he got back up, he started
yelling into the radio in an effort to stop the basket from
descending. The deckhand then noticed the radio was
inoperative, as apparently the radio battery had become
dislodged at some point and the radio had ceased to function.
Pl. Tr. Ex. 35 at 41 ll. 15-23, 42 ll. 18-25; Pl. Tr. Ex. 36
at 31 ll. 4-25, 32 ll. 1-21, 33 ll. 17-25, 61 ll. 11-19; Tr.
at 127 ll. 1-12.
to the deckhand's radio becoming inoperable, he could not
communicate with the crane operator and inform him about the
broken tagline and the spinning and swaying basket. Pl. Tr.
Ex. 36 at 61 ll. 4-24, 62 ll. 3-10.
personnel basket struck the vessel's port railing and
came to rest about four feet above the vessel's deck. As
the basket teetered on the vessel's railing, Kinnerson
and the other men quickly jumped to the vessel's deck.
Kinnerson testified that he landed in a “twisted”
position. Tr. at 127 ll. 9-22; Pl. Tr. Ex. 35 at 48 ll. 3-16;
Pl. Tr. Ex. 36 at 62 ll. 11-18.
Captain of the M/V Miss Claire, using the vessel's radio,
told the crane operator that the men had gotten out of the
basket but it “was a close call.” The crane
operator then raised the basket back up to the deck of the
platform and the vessel proceeded to take the men to shore.
See Tr. at 66 ll. 12-23.
the time of the incident and for a day thereafter, Kinnerson
did not notice any significant pain or discomfort, but soon
he began having pain in his neck and back. The pain in his
back increased and he sought medical help. Kinnerson was
initially seen on June 2, 2015 by Dr. Steven Guillory,
Occupational Medicine Clinic (“OMC”) on referral
from Kinnerson's employer, Oceaneering. Pl. Tr. Ex. 23a
at 8, 139-40.
Kinnerson's chief complaints at that time were to his
lower cervical spine in the C6-7 and lower area, the right
mid- to upper- thoracic muscle between the scapula and spine,
and in the right trapezius muscle. Dr. Guillory's initial
impression was cervical pain, non-radiating, right trapezius
pain, lumbar muscle pain, non-radiating, and some difficulty
sleeping. Dr. Guillory's plan consisted of hot and cold
packs as directed, rest, and decreased activity, no lifting
more than 20 pounds and return for follow up three days later
(i.e., June 5, 2015). Pl. Tr. Ex. 23a at 8-10, 139-40.
Kinnerson returned to OMC on June 5, 2015. He complained of
increasing discomfort in his lower and upper back between his
scapula. He rated his pain as a 9 of 10 on a 1-10 scale. He
also complained of spasms in his upper and lower back
together with numbness and tingling which he attributed to
his injury. Pl. Tr. Ex. 23a at 9-10, 153.
OMC's Dr. Tony Alleman ordered MRIs of Kinnerson's
cervical, lumbar and thoracic spine. Pl. Tr. Ex. 23a at
Thoracic MRI imaging results obtained on June 10, 2015 at
Imaging at Lafayette Surgical Specialty Hospital were
interpreted by the radiologist, Dr. Jeffrey Laborde, as a
T7-8 small central and left lateral focal disc herniation
with no definite cord or nerve root pathology. P1. Tr. Ex.
23a at 171.
Kinnerson returned to OMC on June 15, 2015, with continuing
complaints of discomfort and pain. He rated his pain as an 8
out of 10 on a scale of 1-10. He was not sleeping well due to
pain and numbness, which he attributed to his injury. He
stated that nothing stopped his pain. Pl. Tr. Ex. 23a at 11,
Kinnerson was next seen on July 14, 2015 by Dr. Louis Blanda,
Jr., Lafayette Bone and Joint Clinic, for evaluation of neck
and back pain. Dr. Blanda testified by trial deposition. He
summarized Kinnerson complaints on the July 14, 2015 visit as
involving pain from the base of his neck to his tailbone and
across his bilateral scapula region. He noted that
Kinnerson's symptoms were aching and stabbing in nature;
that Kinnerson described numbness, pins and needles
sensation, and a burning pain; that Kinnerson rated his pain
10 on a scale of 0-10; that Kinnerson had numbness and a
stabbing pain into his left posterior thigh; and that
Kinnerson had a shooting pain and numbness into his left arm.
Pl. Tr. Ex. 44 at 11, 15.
Kinnerson indicated to Dr. Blanda on this first visit that
Kinnerson's pain was constant and increased with
activity. Kinnerson told Dr. Blanda that he had difficulty
sleeping; that coughing, sneezing, walking, and sitting
aggravated his symptoms; that he got some relief with lying
flat with a heating pad; that he did not have any history of
prior injuries to his lower back; and that he worked one day
(June 4, 2015) since the incident. Kinnerson told Dr. Blanda
that he saw the doctor on June 5, 2015 and did not return to
work after that. Pl. Tr. Ex. 44 at 15-16.
Blanda recommended that Kinnerson undergo a course of
physical therapy; prescribed him Norco and Elavil; scheduled
a return visit in 4-6 weeks; and placed Kinnerson on no- work
status. Kinnerson subsequently underwent a course of 12
physical therapy treatments by Fran Mancuso, PT, between July
27, 2015 and August 19, 2015. Pl. Tr. Ex. 44 at 17- 18; Pl.
Tr. Ex. 19.
Blanda next saw Kinnerson on August 25, 2015. At that point,
Kinnerson had completed his 12-session physical therapy
course. Dr. Blanda noted on this visit that the therapy was
aggravating Kinnerson's condition. He summarized
Kinnerson's pain complaints on this visit as pain in his
mid- and lower thoracic region with bilateral radiating chest
pain. In the thoracic spine, the pain was characterized as
aching, constant, deep, diffused, and spasmodic. Causative
factors included lifting, rising from a sitting position,
rotating, standing and walking. Range of motion was
restricted and presented with pain on motion. Inspection of
the upper scapula area evidenced spasm bilaterally. Dr.
Blanda felt the T7-T8 disc herniation could be responsible
for Kinnerson's symptoms and ordered a T7-T8 thoracic
epidural steroid injection. Pl. Tr. Ex. 44 at 18-22.
September 17, 2015, Kinnerson underwent the thoracic epidural
steroid injection, which was performed by Dr. Steven Staires
at Lafayette Surgical Specialty Hospital. Pl. Tr. Ex. 44 at
Kinnerson returned to see Dr. Blanda on October 6, 2015, at
which time he reported that the injection provided no
significant pain or physical relief. Dr. Blanda noted on
physical exam that Kinnerson's mid- thoracic pain
continued to radiate around the intercostal nerves. Kinnerson
rated his pain as an 8 on a scale of 1-10. Dr. Blanda felt
that surgery might be an option and recommended a Jewett
brace at this visit. Pl. Tr. Ex. 44 at 22-23.
Kinnerson next saw Dr. Blanda for follow-up on December 10,
2015 with complaints of continued thoracic pain. On that
visit, Dr. Blanda recommended continued conservative
treatment. Pl. Tr. Ex. 44 at 24-26.
Kinnerson saw Dr. Blanda again for follow-up on February 11,
2016 with continuing complaints of upper back pain. Kinnerson
presented with headaches, tingling, burning, and anxiety. On
physical exam both his neck and thoracic spine were tender.
There was positive neck spasm and Spurling's test was
positive to the shoulders on that visit. Dr. Blanda ordered
another MRI of the thoracic spine. Pl. Tr. Ex. 44 at 26-29.
Kinnerson underwent his second thoracic MRI on February 18,
2016 at Imaging at Lafayette Surgical Specialty Hospital. The
findings of the radiologist, Dr. Jeffrey Laborde, were as
T7-T8 : Positive for a central and left
lateral focal disc herniation with cord ...