Bloodsaw v. Diamond Offshore Management Company
Filing
95
ORDER AND REASONS - ruling on the parties' proposed jury instructions 72 82 , objections 88 , and pretrial memoranda 73 .. Signed by Chief Judge Sarah S. Vance on 8/19/13.(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRENCE BLOODSAW
CIVIL ACTION
VERSUS
NO: 10-4163
DIAMOND OFFSHORE MANAGEMENT
COMPANY
SECTION: R
ORDER AND REASONS
The parties have filed proposed jury instructions,1
objections,2 and pretrial memoranda.3 The Court has explicitly or
implicitly included most of the parties' proposed instructions.
The Court now rules on the parties' objections and those
instructions that the Court will not include in its final charge.
A.
Punitive Damages for Unseaworthiness
Plaintiff requests a jury charge on punitive damages for his
unseaworthiness claim. The Fifth Circuit, relying on the
"uniformity principal" of Miles v. Apex Marine Corp., 498 U.S. 19
(1990), has held that a seaman may not recover non-pecuniary
damages against either his employer or a non-employer.
Scarborough v. Clemco Indus., 391 F.3d 660, 668 (5th Cir. 2004).
Since Scarborough, the Supreme Court has held that a seaman may
1
R. Docs. 72, 82.
2
R. Doc. 88
3
R. Doc. 73.
recover punitive damages for an employer's arbitrary withholding
of maintenance and cure. Atl. Sounding Co. v. Townsend, 557 U.S.
404, 424-25 (2009). Though Townsend gives hope to a seaman
wishing to obtain punitive damages for an unseaworthiness claim,
"this Court cannot assume the Fifth Circuit has changed its
position on personal injury claims falling outside the scope of
Townsend." In re Oil Spill by the Oil Rig "Deepwater Horizon" in
the Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2011 WL
4575696, at *11 (E.D. La. Sept. 30, 2011). Accordingly, courts in
this circuit have held that punitive damages are not available to
a seaman for a claim of unseaworthiness. See, e.g., Snyder v. L&M
Botruc Rental, Inc., No. 12-0097, 2013 WL 594089, at *6 (E.D. La.
Feb. 15 2013); see also Anderson v. Texaco, Inc., 797 F. Supp.
531, 534-536 (E.D. La. 1992) ("Miles compels the conclusion that
a plaintiff who is statutorily barred from receiving a punitive
award cannot recover punitive damages by couching his claim in
the judge-made general maritime law of negligence and
unseaworthiness."); Howard v. Atl. Pac. Marine Co., No. 89-3073,
1992 WL 55487, at *2 (E.D. La. Feb. 28, 1992).
In Townsend, the Supreme Court stated that "[t]he reasoning
of Miles remains sound." Townsend, 557 U.S. at 420. Accordingly,
in light of Scarborough, this Court is unwilling to give a
punitive damages instruction for unseaworthiness claims unless
the Fifth Circuit changes course. The jury will not be instructed
2
on punitive damages, except as they apply to defendants'
withholding of maintenance and cure.
B.
Advance Payment Reduction
Defendants argue that the jury should be instructed to
reduce any amount it awards to Bloodsaw in past lost wages by any
advance on wages that defendants paid to him during his time off
work. Defendants rely on Cunningham v. Noble Drilling, Corp., for
this proposition. 2002 WL 31528444, at *1 (E.D. La. Nov. 12,
2002). In Cunningham, the parties had stipulated to the amount of
advanced wages. Here, defendants have not stated that there is a
stipulation as to the amount of advanced wages that was "an
advance on any claim for wages." Id. at *1. The Court will
instruct the jury as follows: "[p]laintiff may be entitled to
damages for any wages he would have earned less any wages that
defendant has already paid him." To the extent that the parties
cannot stipulate to any advance payment amount, the jury will
decide the amount.
C.
Seaman's Duty
Defendants request the Court to instruct the jury that they
may not be held liable "when an injury arises solely from the
ordinary and normal activities or risks of a seaman's . . . work
in the absence of proof that the injury complained of was caused
by the employer's . . . negligence."4 That defendants must be
4
R. Doc. 72-1 at 12.
3
negligent to be liable is explicitly included in the Court's
charge on Jones Act Negligence. See Fifth Circuit Pattern Jury
Instructions (Civil), § 4.4 (2006). Roulston v. Yazoo River
Towing, Inc., relied on by defendants, does not alter the
standard for Jones Act negligence. 418 F. Supp. 2d 851, 854-55
(S.D. Miss. 2006). The Fifth Circuit pattern instruction on
negligence is exhaustive, and defendants' proposed charge is
cumulative. Accordingly, the Court will not include this
instruction in its final charge to the jury.
D.
Aggravation Instruction
Defendants request an expanded jury instruction on
Bloodsaw's preexisting injury. Specifically, defendants request
an instruction that the jury award only damages for the
aggravation of any preexisting injury. The substance of
defendants' proposed charge is captured by the Fifth Circuit
pattern instruction, which will be included in the jury charge.
The Court finds that the Fifth Circuit pattern instruction is
sufficient and that defendants' language is cumulative. See Fifth
Circuit Pattern Jury Instructions (Civil), § 15.5 (2006).
E. Future Medical Expenses
Defendants object to plaintiff's proposed verdict question
on future medical expenses.5 They assert that "there is no
5
R. Doc. 88 at 3.
4
evidence to support an award of future medical expenses in this
case."
Plaintiff listed "future medical expense" as a contested
issue of fact in the pretrial order.6 The Court reserves ruling
on this issue until plaintiff has had an opportunity to present
evidence on it.
New Orleans, Louisiana, this 19th day of August, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
6
R. Doc. 54 at 9.
5
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