Howard v. Offshore Liftboats, LLC et al

Filing 906

ORDER AND REASONS RE 875 Motion for Taxation of Costs. ; 877 Motion for Taxation of Costs. ; 878 Motion for Bill of Costs - IT IS ORDERED that the motions to tax costs64 considered by the Court herein are GRANTED IN PART. Plaintiffs Raymond Howard and Calvin Howard are the prevailing parties in this action and, as a result, are entitled to recover from OLB 50% of their pre-offer costs under Rule 54(d). Pursuant to Rule 68(d), OLB is entitled to recover its post-offer costs from Plaintiffs. IT IS FURTHER ORDERED that this matter is referred to the office of the Clerk of Court for the taxation of costs in accordance with this ruling. Signed by Judge Susie Morgan on 6/24/16. (Reference: all cases)(cg) (NEF; Clerk)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CALVIN HOWARD, ET AL.

CIVIL ACTION

VERSUS

NO. 13-4811
c/w 13-6407 and 14-1188

OFFSHORE LIFTBOATS, LLC,
ET AL.

SECTION “E” (5)

ORDER AND REASONS
This matter comes before the Court post-judgment for the taxation of costs under
Rule 54(d) and Rule 68(d) of the Federal Rules of Civil Procedure. Plaintiffs Raymond
Howard and Calvin Howard and Defendant Offshore Liftboats, LLC (“OLB”), have filed
motions to tax costs, with each party representing that he, or it, is the prevailing party in
this matter and is entitled to costs under Rule 54(d). 1 OLB also seeks an award of postoffer of judgment costs pursuant to Rule 68(d), noting it made offers of judgment to both
Raymond Howard and Calvin Howard, which were not accepted, and arguing Raymond
and Calvin subsequently recovered a less favorable judgment at trial. 2
For the following reasons, the Court finds that Plaintiffs Raymond Howard and
Calvin Howard are the prevailing parties in this action and awards them 50% of their preoffer costs under Rule 54(d). The Court also finds that, pursuant to Rule 68(d), OLB is
entitled to recover its post-offer costs.
BACKGROUND
The matter of Calvin Howard, et al. v. Offshore Liftboats, LLC, et al. proceeded to
a jury trial on January 25, 2016. The trial involved the claims of Plaintiffs Calvin Howard
and Raymond Howard against their employer, Offshore Liftboats, LLC (“OLB”); K&K
1
2

R. Docs. 875, 877, 878.
See R. Doc. 875.

1

Offshore, LLC (“K&K”); and the insurers of both entities. 3 The claims asserted by the
Plaintiffs were for various personal injuries, including alleged traumatic brain injuries,
which the Plaintiffs claim they sustained during a failed personnel-basket transfer in the
offshore waters of the Gulf of Mexico on May 16, 2013. 4 Plaintiffs brought claims against
OLB, their employer, for Jones Act negligence; the unseaworthiness of OLB’s vessel, the
L/B Janie, under the General Maritime Law; and maintenance and cure. 5 Plaintiffs
initially brought claims against K&K, a non-employer third party, for negligence and
unseaworthiness under the General Maritime Law. 6 Plaintiffs’ claims that K&K’s vessel,
the M/V Contender, was unseaworthy were dismissed prior to trial. 7 Plaintiffs settled
their remaining claims with K&K after trial commenced but prior to the submission of the
case to the jury for decision.
The trial lasted approximately four (4) weeks, concluding on February 19, 2016,
when the jury returned its verdict. The jury concluded that both OLB and K&K were
negligent and that each one’s negligence played a part, however slight, in causing
Plaintiffs’ injuries. 8 With respect to Plaintiffs’ unseaworthiness claims against OLB, the
jury found that OLB’s vessel, the L/B Janie, was not unseaworthy under the General
Maritime Law. 9 The jury also found that neither Raymond Howard nor Calvin Howard
was negligent. 10 In allocating fault between OLB and K&K, the jury found OLB to be 20%
at fault for the accident and K&K to be 80% at fault. 11

R. Doc. 757 at 6–7 (Pretrial Order).
See generally R. Doc. 757 at 5–8, 15–22 (Pretrial Order).
5 See R. Doc. 218 (Second Amended & Supplemental Complaint).
6 R. Doc. 218 (Second Amended & Supplemental Complaint).
7 R. Doc. 705 at 2.
8 R. Doc. 829 at 2–3 (Jury Verdict).
9 R. Doc. 829 at 6 (Jury Verdict).
10 R. Doc. 829 at 4–5 (Jury Verdict).
11 R. Doc. 829 (Jury Verdict).
2
3

4

LAW AND ANALYSIS
Rule 54 of the Federal Rules of Civil Procedure creates “a strong presumption that
the prevailing party will be awarded costs.” 12 Rule 54(d) provides, in part, that “[u]nless
a federal statute, these rules, or a court order provides otherwise, costs—other than
attorney’s fees—should be allowed to the prevailing party.” Thus, to determine whether a
party can recover its costs under Rule 54(d), the Court must determine whether that party
is the “prevailing party” within the meaning of Rule 54(d). 13 After prevailing-party status
has been determined, the Court then must ask whether a federal statute, a Federal Rule
of Civil Procedure, or a federal court order provides that costs, for one reason or another,
should not be awarded to the prevailing party.
1. Who are the Prevailing Parties under Rule 54(d)?
“The ‘prevailing party’ determination is a clear, mechanical one; when a judgment
is entered in favor of a party, it is the prevailing party.” 14 In this case, judgment was
entered in favor of Plaintiffs Raymond Howard and Calvin Howard because each plaintiff
prevailed on his negligence claim against OLB. 15 As explained in the judgment, the jury
found that both K&K and OLB were negligent and that their negligence was a substantial
factor in causing Plaintiffs’ injuries. 16 Furthermore, the jury found that neither Raymond
nor Calvin were at fault, assigning K&K 80% of the fault and OLB 20%.

12 Schwarz v. Folloder, 767

F.2d 125, 131 (5th Cir. 1985) (holding that when a district court declines to award
costs to a prevailing party, it should state its reasons for doing so); Perry v. Port of Houston Authority, 31
F. App’x. 153 (5th Cir. 2001) (remanding the issue of costs to the district court for reconsideration for failing
to award costs to the prevailing party and not stating its reasons for doing so); Abate v. Kansas City
Southern Ry. Co., No. 90-1219, 1991 WL 195518, at n. 3 (E.D. La.1991) (Schwartz, J.) (quoting Folloder,
supra, and denying plaintiff's motion to prorate costs).
13 See, e.g., Schwarz, 767 F.2d at 130.
14 Allianz Versicherungs, AG v. Profreight Brokers, Inc., 99 F. App’x 10, 13 (5th Cir. 2004) (citing Baker v.
Bowen, 839 F.2d 1075, 1081, (5th Cir. 1988); see also 10 James Wm. Moore et al., MOORE'S FEDERAL
PRACTICE ¶ 54.101[3] (3d ed. 1998) (“[T]he prevailing party is the party in whose favor judgment was
entered, even if that judgment does not fully vindicate the litigant's position in the case.”)).
15 R. Doc. 854 (Judgment).
16 R. Doc. 854 (Judgment).
3

OLB points out, however, that, although the Plaintiffs prevailed on their negligence
claims and were not allocated any fault, the Plaintiffs “did not prevail on their general
maritime law claims for unseaworthiness or for punitive damages for failure to pay
cure.” 17 For that reason, among others, OLB argues it was the prevailing party. Having
reviewed Fifth Circuit authority, the Court finds that OLB’s argument is without merit.
The Fifth Circuit, interpreting Rule 54(d), has held that:
A party need not prevail on all issues to justify a full award of costs . . . .
Usually the litigant in whose favor judgment is rendered is the prevailing
party for purposes of Rule 54(d). A party who has obtained some relief
usually will be regarded as the prevailing party even though he has not
sustained all of his claims. Cases from this and other circuits consistently
support shifting costs if the prevailing party obtains judgment on even a
fraction of the claims advanced. 18
In this case, Plaintiffs prevailed on some, but not all, of their claims. Because the
Plaintiffs prevailed on their negligence claims against OLB, and because judgment was
entered in favor of the Plaintiffs, the Court finds that Plaintiffs Raymond Howard and
Calvin Howard are the prevailing parties in this matter under Federal Rule of Civil
Procedure 54(d).
2. Does a federal statute, rule, or court order “provide otherwise”?
Although Rule 54(d) does not require that costs be awarded to the prevailing party,
it states that costs should be awarded unless a federal statute, a federal rule, or a court
order provides otherwise. Federal Rule of Civil Procedure 68 is one such rule that
“provides otherwise” in certain circumstances.
Rule 68 outlines the procedure for making a pre-trial offer of judgment and
provides for the potential consequences to a plaintiff who does not accept such an offer:
R. Doc. 875-2 at 3.
United States v. Mitchell, 580 F.2d 789, 793 (5th Cir. 1978) (alterations omitted) (citations omitted)
(quotation marks omitted), superseded by statute on other grounds, 42 U.S.C. § 3614. See also Tempest
Publ’g, Inc. v. Hacienda Records and Recording Studio, Inc., 141 F. Supp. 3d 712, 718 (S.D. Tex. 2015).
4
17

18

(a) Making an Offer; Judgment on an Accepted Offer. At least 14
days before the date set for trial, a party defending against a claim may serve
on an opposing party an offer to allow judgment on specified terms, with
the costs then accrued. If, within 14 days after being served, the opposing
party serves written notice accepting the offer, either party may then file the
offer and notice of acceptance, plus proof of service. The clerk must then
enter judgment.
....

(d) Paying Costs After an Unaccepted Offer. If the judgment that the
offeree finally obtains is not more favorable than the unaccepted offer, the
offeree must pay the costs incurred after the offer was made. 19
Rule 68 is mandatory and, if it applies, leaves no room for discretion by the district
court. That is, if (1) the offer of judgment is not accepted and (2) the final judgment that
the plaintiff obtains is less favorable than the offer, Rule 68 requires that the plaintiff pay
the defendant’s post-offer costs. 20 Furthermore, when considered in conjunction with
Rule 54(d), “Rule 68 operates against a prevailing plaintiff who does not accept a losing
defendant’s offer, resulting in the loss of some of the benefits of the prevailing party’s
victory (costs pursuant to Rule 54(d)) in the event his recovery is less than the rejected
offer.” 21 In other words, if the plaintiff is the “prevailing party” under Rule 54(d) but (1)
did not accept an offer of judgment made under Rule 68, and (2) ultimately obtains a
judgment that is less favorable than the offer of judgment, the plaintiff can only recover
his pre-offer costs and must pay the defendant’s post-offer costs. 22

FED. R. CIV. P. 68(a), (d).
Johnston v. Penrod Drilling Co., 803 F.2d 867, 869 (5th Cir. 1986).
21 Carino v. Wal-Mart Louisiana, LLC, No. 05CV1978, 2007 WL 977553, at *1 (W.D. La. Mar. 28, 2007)
(citing Louisiana Power & Light v. Kellstrom, 50 F.3d 319, 333–34 (5th Cir. 1995)).
22 See, e.g., Brown v. Wal-Mart Stores, Inc., No. 6:10-1402, 2013 WL 3935029, at *1 (W.D. La. July 26,
2013) (citations omitted) (internal quotation marks omitted) (alterations omitted) (“[U]nder Rule 68, when
a plaintiff does not accept a defendant’s Offer of Judgment which is more favorable than the Judgment the
plaintiff ultimately obtains, the plaintiff must pay the defendant’s costs which were incurred after the Offer
of Judgment was made. Further, the plaintiff cannot recover otherwise awardable costs incurred after the
date of the offer.”).
5
19

20

OLB extended separate offers of judgment under Rule 68 to Calvin Howard and
Raymond Howard on January 8, 2016. 23 The offer of judgment made to Calvin was in the
amount of $875,000.00, 24 and the offer of judgment made to Raymond was in the
amount of $500,000.00. 25 The Court will first analyze whether OLB’s offer of judgment
to Calvin in the amount of $875,000.00 was more favorable than the judgment that
Calvin ultimately obtained. The Court will subsequently engage in the same analysis with
respect to Raymond and OLB’s $500,000.00 offer of judgment to him.
a. Calvin Howard
As stated previously, on January 8, 2016, OLB made an offer of judgment to Calvin
Howard in the amount of $875,000.00. 26 The offer of judgment stated, in part, that:
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Offshore
Liftboats offers to allow Calvin Howard to take judgment against it as to the
claims asserted by Calvin Howard in the above captioned matter in the total
sum of $875,000.00.
This offer of judgment is intended to resolve all of Calvin Howard’s claims
in this action, including without limitation, any and all claims for
compensatory damages, statutory damages, attorneys fees, litigation
expenses, and costs of suit. 27
Calvin did not accept OLB’s $875,000.00 offer of judgment, opting instead to
proceed to trial and present his case to a jury of his peers. At the conclusion of trial, the
jury returned a verdict awarding Calvin damages in the total amount of $3,262,100.00, 28
for which OLB was found to be 20% responsible. 29 The jury also found that, with respect

R. Docs. 875-8, 875-9.
R. Doc. 875-8.
25 R. Doc. 875-9.
26 R. Doc. 875-8.
27 R. Doc. 875-8.
28 R. Doc. 829 at 8 (Physical pain and suffering and loss of enjoyment of life in the past ($275,000); Physical
pain and suffering and loss of enjoyment of life in the future ($175,000); Mental anguish in the past
($27,500); Mental anguish in the future ($300,000); Loss of earning capacity, including the value of fringe
benefits, in the past ($234,600); Loss of earning capacity, including the value of fringe benefits, in the future
($2,200,000); and Medical expenses in the future ($50,000)).
29 R. Doc. 829 at 7.
6
23

24

to Calvin’s claims for maintenance and cure under the General Maritime Law, Calvin
would reach maximum medical improvement (“MMI”) on April 30, 2017. 30 The jury’s
verdict became the judgment of the Court on March 23, 2016. 31
OLB’s 20% of Calvin’s damages award, as reflected in the judgment, amounts to
$652,420.00, which is clearly less than OLB’s $875,000.00 offer of judgment to Calvin.
The Rule 68 analysis, however, does not end here. The Court must add the other amounts
to which Calvin is entitled, such as (1) Calvin’s pre-offer of judgment costs, 32 and (2) the
future maintenance-and-cure to which Calvin is entitled until April 30, 2017 to determine
whether the amount reflected in the judgment is less than the offer of judgment. Calvin
contends the amounts for damages, pre-offer costs, and maintenance are:
Damages

$652,420.00

Pre-offer costs

$46,634.96

Maintenance

$14,875.00

Total
(without cure)

$713,929.96

Calvin represents that his pre-offer costs total $46,634.96. 33 OLB takes no position
on the amount Calvin’s pre-offer costs. The Court has wide discretion to award to the
prevailing party the sum of its pre-offer costs or to award a percentage of the party’s preoffer costs. 34 The Fifth Circuit has stated, specifically, that “Rule 54(d) gives the district
court the necessary discretion to tax costs against the party who should equitably bear

R. Doc. 829 at 10.
R. Doc. 854.
32 See, e.g., Barrow v. Greenville Indep. Sch. Dist., No. 3:00-CV-0913-D, 2005 WL 6789456, at *21 (N.D.
Tex. Dec. 20, 2005).
33 R. Doc. 886 at 7.
34 See, e.g., Weiser v. Horace Mann Ins. Co., No. 06-9080, 2009 WL 5194972, at *3 (E.D. La. May 15,
2009); see also Breeland v. Hide-A-Way Lake, INc., 585 F.2d 716, 722 (5th Cir. 1978) (“It is well established
that the district court enjoys discretion in determining who shall bear the costs of litigation and how much
of the costs shall be apportioned to a taxed party.”).
7
30
31

them.” 35 In this case, OLB was found to be only 20% at fault. Moreover, Calvin was only
partially successful on his claims against OLB. For these reasons, the Court exercises its
discretion and will make only a partial award of costs to Calvin, awarding him 50% of his
pre-offer costs. For purposes of this analysis only, the Court will use 50% of Calvin’s
figure, which is $23,317.48.
As noted above, the jury found that Calvin would reach MMI on April 30, 2017.
The effect of the jury’s MMI finding is that OLB is obligated, until April 30, 2017, to pay
any cure expenses actually incurred by Calvin and to pay Calvin maintenance at the rate
of $35.00 per day. Calvin represents that the value of the future maintenance to which he
is entitled from OLB is $14,875.00. 36 Calvin calculated this figure by multiplying the
approved rate of maintenance, $35.00 per day, by 425 days—the number of days in
between March 1, 2016, and April 30, 2017, the date on which the jury concluded Calvin
would reach MMI. OLB does not dispute that Calvin is entitled to $14,875.00 in future
maintenance payments. In fact, OLB makes no representation as to the value of the future
maintenance payments that are owed to Calvin. Therefore, for purposes of this analysis
only, the Court will use Calvin’s figure with respect to the value of his maintenance award.
With respect to cure, Calvin is entitled to receive cure payments for medical
expenses that he actually incurs prior to reaching MMI. 37 For present purposes, to
determine whether the value of Calvin’s final award is less than or exceeds OLB’s Rule 68
offer of judgment, the Court will make a realistic assessment of the value of Calvin’s future
cure award. 38 Calvin represents that his life care planner, “Dr. Cornelius Gorman, testified

Johnston, 803 F.2d at 870–71. See also Pacheco v. Mineta, 448 F.3d 783, 793–94 (5th Cir. 2006).
R. Doc. 886 at 7.
37 See, e.g., Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002) (“The duty to provide cure
encompasses . . . the obligation to reimburse medical expenses actually incurred.”) (emphasis added).
38 See, e.g., 12 Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 3006.1, 150–51 (3d ed.,
2004).
8
35

36

that Calvin Howard would need to return to Touchstone Neurorecovery Center for 60
days,” and “a 60-day stay would cost $60,000.” 39 Calvin also points to his request for
“reimbursement of travel expenses in connection with transportation to and from medical
appointments, which amounts to $31,624.47.” 40 Calvin contends these two figures are but
two examples of amounts to which he is entitled under OLB’s future cure obligation. For
purposes of this analysis only, the Court will include these amounts, plus the additional
expenses discussed below, in calculating the value of Calvin’s cure award.
To calculate the value of Calvin’s remaining cure expenses through April 30, 2017,
the Court looks to the testimony of Calvin’s life-care planner, Dr. Cornelius Gorman. 41 Dr.
Gorman predicted that Calvin’s “plan of care,” for the remainder of his life, would cost
approximately $12,073,868.75.42 According to Dr. Gorman, Calvin’s plan of care is
broken down as follows:
Facility Care

$11,337,517.50

Financial
Management

$427,500.00

Future Medical Care
Routine

$122,921.00

Health and Strength
Maintenance

$23,917.00

Medications

$19,736.25

Projected Evaluations

$14,585.00

Projected Therapeutic
Modalities

$127,692.00

Total
R. Doc. 886 at 9.
R. Doc. 886 at 9.
41 See R. Doc. 855 at 143.
42 R. Doc. 803-2 at 6.

$12,073,868.75

39

40

9

Because these figures represent the costs associated with Calvin’s plan of care for
the remainder of his life, the Court must determine which costs are expected to be
incurred prior to April 30, 2017, the date on which the jury concluded that Calvin will
reach MMI and the date on which OLB’s cure obligation ends. The Court does so by
examining each category of Dr. Gorman’s life-care plan, the frequency and duration of
each item of treatment recommended by Dr. Gorman, and the associated price per unit,
ultimately arriving at the costs that would likely be incurred by Calvin prior to April 30,
2017. The Court’s estimations are based on a span of two (2) years from the date of the
Court’s judgment until the date on which Calvin will reach MMI, which is longer than the
actual time and, thus, is more favorable to Calvin.
i. Facility Care
This category estimates the costs that would be incurred if Calvin were to return to
Touchstone Neurorecovery Center, as recommended by Dr. Gorman. According to Calvin,
the costs associated with his return to Touchstone would be approximately $60,000.00. 43
The Court will, for purposes of this analysis, assume that this $60,000.00 would be
recoverable from OLB under its cure obligation.
ii. Financial Management
Dr. Gorman recommends that Calvin obtain accountancy services to manage his
financial interests. “Cure involves the payment of therapeutic, medical, and hospital
expenses not otherwise furnished to the seaman until the point of maximum cure.” 44
Costs incurred to obtain accountancy services are not part of OLB’s obligation to pay cure,

R. Doc. 886 at 9.
Barto v. Shore Const., L.L.C., 801 F.3d 465, 476 (5th Cir. 2015) (citations omitted) (internal quotation
marks omitted) (alterations omitted).
10
43

44

and the Court thus does not consider these costs in determining the value of Calvin’s
award of future cure.
iii. Future Medical Care Routine
Dr. Gorman recommends Calvin obtain the following medical care in the future:
Item/Service

Frequency

Cost Per Unit

Cost Over 2 Years
(Cure)

1 time/3 years

$4,500.00

$4,500.00

EMG/NCV

1 time only

$1,000.00

$1,000.00

Laboratory Testing

1 time/year

$115.00

$230.00

MRI, Cervical Spine

1 time only

$2,149.00

$2,149.00

MRI, Lumbar Spine

1 time only

$2,247.00

$2,247.00

Internal Medicine

1 time/year

$175.00

$350.00

Neurologist

2 times/year

$200.00

$800.00

Pain Specialist

4 times/year

$200.00

$1,600.00

Diagnostic Imaging

Total

$12,876.00
iv. Health and Strength Maintenance

Assuming that these costs would be included as cure, Dr. Gorman’s Health and
Strength Maintenance category includes the following costs:
Item/Service

Frequency

Cost Per Unit

Cost Over 2 Years
(Cure)

Wellness Center
Initial Fee

1 time only

$100.00

$100.00

Wellness Center
Monthly Fee

1 time/month

$51.00

$1,224.00

Total

$1,324.00
11

v. Medications
Dr. Gorman identifies the following costs associated with medications:
Item/Service
Current Medications

Frequency

Cost Per Unit

Cost Over 2 Years
(Cure)

1 time/month

$41.55

$997.20

Total

$997.20
vi. Projected Evaluations

The following projected evaluations are recommended:
Item/Service

Frequency

Cost Per Unit

Cost Over 2 Years
(Cure)

Internal Medicine
Evaluation

1 time only

$300.00

$300.00

Neurology Evaluation

1 time only

$495.00

$495.00

Neuropsychological
Testing

1 time only

$1,500.00

$1,500.00

Occupational Therapy
Evaluation
Pain Specialist
Evaluation

1 time/year

$200.00

$400.00

1 time only

$350.00

$350.00

Physical Therapy
Evaluation

1 time only

$180.00

$180.00

Psychiatric Evaluation

1 time only

$2,500.00

$2,500.00

Psychotherapy
Evaluation

1 time only

$260.00

$260.00

Speech Therapy
Evaluation

2 times only

$500.00

$1,000.00

Total

$6,985.00

12

vii. Projected Therapeutic Modalities
The following projected therapeutic modalities are recommended:
Item/Service

Frequency

Cost Per Unit

Cost Over 2 Years
(Cure)

Occupational Therapy

1 time/year

$1,020.00

$2,040.00

Physical Therapy

1 time/year

$960.00

$1,920.00

Speech Therapy

1 time/year

$688.00

$1,376.00

Psychiatrist

4 times/year

$180.00

$1,440.00

Psychiatrist (again)

2 times/year

$180.00

$720.00

Psychotherapy

1 time/week

$120.00

$12,480.00

2 times/month

$120.00

$5,760.00

Psychotherapy (again)
Total

$25,736.00

Based on the foregoing calculations, which are based on the various potential
medical expenses listed in Dr. Gorman’s life-care plan for Calvin Howard over the next
two years, the Court finds, for purposes of this Rule 68 analysis only, that a reasonable
estimate of the value of Calvin’s future cure award is $139,542.67, as reflected below:
Category

2 year total:

Travel to and from
appointments 45

$31,624.47

Facility Care

$60,000.00

Financial
Management

$0

Future Medical Care
Routine

$12,876.00

45 The Court takes no position on whether these expenses are recoverable as cure but includes them here
for purposes of argument.
13

Health and Strength
Maintenance
Medications

$1,324.00
$997.20

Projected Evaluations

$6,985.00

Projected Therapeutic
Modalities

$25,736.00

Total

$139,542.67

The jury awarded Calvin damages for future medical expenses in the amount of
$50,000.00. OLB is entitled to an offset in that amount against Calvin’s future cure award
because the law does not permit double recovery. After deducting $50,000.00, a
reasonable estimate of the value of Calvin’s future cure award through April 30, 2017, is
$89,542.67. This figure, when added to the damages awarded Calvin, 50% of his pre-offer
costs, and Calvin’s estimate of the value of his maintenance award, brings Calvin’s total
recovery in this matter to $780,155.15 46:
Damages

$652,420.00

Pre-offer costs

$23,317.48

Maintenance

$14,875.00

Cure

$89,542.67

Total
(with cure)

$780,155.15

At the end of the day, having awarded 50% of Calvin’s estimated value of his preoffer costs and his estimated value of his future maintenance award, and having been very
generous in estimating the value of Calvin’s future cure award, the Court finds that

46 The Court notes that this figure is likely much larger than what Calvin will actually incur as cure prior to
April 30, 2017, given the many benefits of the doubt the Court has afforded Calvin.
14

Calvin’s final recovery was less than OLB’s $875,000.00 offer of judgment. Therefore,
although Calvin, as a prevailing party, may recover 50% of his pre-offer costs from OLB
under Rule 54(d), Calvin must pay OLB’s post-offer costs pursuant to Rule 68(d).
b. Raymond Howard
Also on January 8, 2016, OLB made an offer of judgment to Raymond Howard in
the amount of $500,000.00. 47 Similar to OLB’s offer to Calvin, OLB’s offer of judgment
to Raymond stated, in part, that:
Pursuant to Rule 68 of the Federal Rules of Civil Procedure, Offshore
Liftboats offers to allow Raymond Howard to take judgment against it as to
the claims asserted by Raymond Howard in the above captioned matter in
the total sum of $500,000.00.
This offer of judgment is intended to resolve all of Raymond Howard’s
claims in this action, including without limitation, any and all claims for
compensatory damages, statutory damages, attorneys fees, litigation
expenses, and costs of suit.
Like Calvin, Raymond did not accept OLB’s offer of judgment. The jury returned a
verdict awarding Raymond damages in the total amount of $820,000.00, 48 for which
OLB was found to be 20% responsible. 49 The jury also found that, with respect to
Raymond’s claims for maintenance and cure under the General Maritime Law, Raymond
would reach maximum medical improvement (“MMI”) on September 30, 2016. 50 The
jury’s verdict became the judgment of the Court on March 23, 2016. 51
OLB’s 20% of Raymond’s damages award, as reflected in the judgment, amounts
to $164,000.00, which is clearly less than OLB’s $500,000.00 offer of judgment to
R. Doc. 875-9.
R. Doc. 829 at 9 (Physical pain and suffering and loss of enjoyment of life in the past ($150,000); Physical
pain and suffering and loss of enjoyment of life in the future ($25,000); Mental anguish in the past
($27,500); Mental anguish in the future ($300,000); Loss of earning capacity, including the value of fringe
benefits, in the past ($290,000); Loss of earning capacity, including the value of fringe benefits, in the
future ($15,000); and Medical expenses in the future ($12,500)).
49 R. Doc. 829 at 7.
50 R. Doc. 829 at 10.
51 R. Doc. 854.
15
47

48

Raymond. As with Calvin, however, the Rule 68 analysis does not end here. The Court
must add the other amounts to which Raymond is entitled, such as (1) Raymond’s preoffer of judgment costs, and (2) the future maintenance-and-cure to which Raymond is
entitled until September 30, 2016, to determine whether the amount reflected in the
judgment is less than the offer of judgment. Unlike Calvin, however, Raymond has not
separated his costs into pre-offer and post-offer and has not provided a specific value for
his future maintenance-and-cure award. For purposes of the present analysis, the Court
will use the total amount of costs provided by Raymond and will calculate Raymond’s
maintenance award:
Damages

$164,000.00

Pre-offer costs 52

$158,440.92

Maintenance
Total
(without cure)

$7,455.00
$329,895.92

As explained with respect to Calvin, the Court has wide discretion to award to the
prevailing party the sum of its pre-offer costs or to award a percentage of the party’s preoffer costs. 53 The Fifth Circuit has stated, specifically, that “Rule 54(d) gives the district
court the necessary discretion to tax costs against the party who should equitably bear
them.” 54 In this case, OLB was found to be only 20% at fault. Moreover, Raymond was
only partially successful on his claims against OLB. For these reasons, the Court exercises
its discretion and will make only a partial award of costs to Raymond, awarding him 50%

52 As explained infra, the Court uses the total-cost figure alleged by Raymond, without respect to whether
pre-offer of judgment or post-offer, for purposes of this analysis.
53 See, e.g., Weiser v. Horace Mann Ins. Co., No. 06-9080, 2009 WL 5194972, at *3 (E.D. La. May 15, 2009);
see also Breeland v. Hide-A-Way Lake, INc., 585 F.2d 716, 722 (5th Cir. 1978) (“It is well established that
the district court enjoys discretion in determining who shall bear the costs of litigation and how much of
the costs shall be apportioned to a taxed party.”).
54 Johnston, 803 F.2d at 870–71. See also Pacheco v. Mineta, 448 F.3d 783, 793–94 (5th Cir. 2006).
16

of his pre-offer costs. For purposes of this analysis only, the Court will use 50% of
Raymond’s total costs, which is $79,220.46.
As noted above, the jury found that Raymond will reach MMI on September 30,
2016. The effect of the jury’s MMI finding is that OLB is obligated, until September 30,
2016, to pay any cure expenses actually incurred by Raymond and to pay Raymond
maintenance at the rate of $35.00 per day. With respect to maintenance, Raymond makes
no representation of what the value of his maintenance award is. 55 Neither does OLB take
a position on the value of Raymond’s maintenance award. The Court has calculated a
reasonable estimate of this award by multiplying the approved rate of maintenance,
$35.00 per day, by 213 days—the number of days in between March 1, 2016, and
September 30, 2016, the date on which the jury concluded Raymond would reach MMI. 56
This figure, which totals $7,455.00, is reflected in the chart above.
With respect to cure, Raymond is entitled to receive cure payments for medical
expenses that he actually incurs prior to reaching MMI. 57 For present purposes, to
determine whether the value of Raymond’s final award is less than or exceeds OLB’s Rule
68 offer of judgment, the Court will make a realistic assessment of the value of Raymond’s
future cure award. 58 To calculate the value of Raymond’s cure expenses through
September 30, 2016, the Court will also look to the testimony of Dr. Cornelius Gorman,
who created a life-care plan for Raymond separate and apart from the life-care plan he
prepared for Calvin. 59 Dr. Gorman predicted that Raymond’s “plan of care,” for the

R. Doc. 886 at 7.
R. Doc. 886 at 7.
57 See, e.g., Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002) (“The duty to provide cure
encompasses . . . the obligation to reimburse medical expenses actually incurred.”) (emphasis added).
58 See, e.g., 12 Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 3006.1, 150–51 (3d ed.,
2004).
59 See R. Doc. 855 at 143.
17
55

56

remainder of his life, would cost approximately $930,044.20. 60 According to Dr. Gorman,
Raymond’s plan of care is broken down as follows:
Durable Medical Items

$160.00

Financial Management

$238,500.00

Future Medical Care
Routine

$178,603.50

Health and Strength
Maintenance

$27,030.00

Home Care

$53,000.00

Medications

$167,951.70

Projected Evaluations

$28,259.00

Projected Therapeutic
Modalities

$236,540.00

Total

$930,044.20

As with Calvin, because these figures are the costs associated with Raymond’s plan
of care for the remainder of his life, the Court must determine which costs are expected
to be incurred prior to September 30, 2016, the date on which the jury concluded that
Raymond will reach MMI and the date on which OLB’s cure obligation ends. The Court
does so by examining each category of Dr. Gorman’s life-care plan, the frequency and
duration of each item of treatment recommended by Dr. Gorman, and the associated price
per unit, ultimately arriving at the costs that would likely be incurred by Raymond prior
to September 30, 2016. The Court’s estimations are based on a span of one (1) year from
the date of the Court’s judgment until the date on which Raymond will reach MMI, which
is slightly longer than the actual time and, thus, is more favorable to Raymond.

60

R. Doc. 803-2 at 6.

18

i. Durable Medical Items
This category includes only the one-time cost of a TENS unit in the amount of
$160.00. The Court includes this cost, for purposes of argument, in its valuation of
Raymond’s future cure award.
ii. Financial Management
Dr. Gorman recommends that Raymond obtain accountancy services to manage
his financial interests. “Cure involves the payment of therapeutic, medical, and hospital
expenses not otherwise furnished to the seaman until the point of maximum cure.” 61 Costs
incurred to obtain accountancy services are not part of OLB’s obligation to pay cure, and
the Court thus does not consider these costs in determining the value of Raymond’s award
of future cure.
iii. Future Medical Care Routine
In this category, Dr. Gorman recommends that Raymond obtain the following
medical care in the future:
Item/Service

Frequency

Cost Per Unit

Cost Over 1 Year
(Cure)

1 time/4 years

$6,000.00

$6,000.00

EMG/NCV

1 time only

$500.00

$500.00

Laboratory Testing

1 time/year

$115.00

$115.00

MRI, Brain

1 time only

$2,370.00

$2,370.00

MRI, Cervical Spine

1 time only

$2,149.00

$2,149.00

MRI, Lumbar Spine

1 time only

$2,247.00

$2,247.00

Urine Drug Screening

1 time only

$212.50

$212.50

Diagnostic Imaging

61 Barto v. Shore Const., L.L.C., 801 F.3d 465, 476 (5th Cir. 2015) (citations omitted) (internal quotation
marks omitted) (alterations omitted).
19

Urine Drug Screening
(again)

4 times/year

$212.50

$850.00

Internal Medicine

1 time/year

$175.00

$175.00

Neurologist

2 times/year

$200.00

$400.00

Physical Medicine &
Rehabilitation

4 times/year

$200.00

$800.00

Total

$15,818.50
iv. Health and Strength Maintenance

Assuming that these costs would be included as cure, Dr. Gorman’s Health and
Strength Maintenance category includes the following costs:
Item/Service

Frequency

Cost Per Unit

Cost Over 1 Year
(Cure)

Wellness Center
Initial Fee

1 time only

$100.00

$100.00

Wellness Center
Monthly Fee

1 time/month

$51.00

$612.00

Total

$712.00
v. Home Care

Dr. Gorman identifies the following costs associated with home care:
Item/Service
Home Management

Frequency

Cost Per Unit

Cost Over 1 Year
(Cure)

1 time/month

$100.00

$1,200.00

Total

$1,200.00
vi. Medications

Dr. Gorman identifies the following costs associated with medications:
20

Item/Service
Current Medications

Frequency

Cost Per Unit

Cost Over 1 Year
(Cure)

1 time/month

$316.89

$3,802.68

Total

$3,802.68
vii. Projected Evaluations

The following projected evaluations are recommended:
Item/Service

Frequency

Cost Per Unit

Cost Over 1 Year
(Cure)

Durable Medical
Equipment Evaluation

1 time only

$144.00

$144.00

Family Therapy
Evaluation

1 time only

$260.00

$260.00

Internal Medicine
Evaluation

1 time only

$300.00

$300.00

Neurology Evaluation

1 time only

$495.00

$495.00

Neuropsychological
Testing

1 time only

$1,500.00

$1,500.00

Occupational Therapy
Evaluation

1 time/year

$200.00

$200.00

Physical Medicine &
Rehabilitation
Evaluation

1 time only

$1,500.00

$1,500.00

Physical Therapy
Evaluation

1 time/year

$180.00

$180.00

Psychological
Evaluation

1 time only

$260.00

$260.00

Sleep Medicine
Specialist Evaluation

1 time only

$350.00

$350.00

Speech/Cognitive
Therapy Evaluation

1 time/year

$300.00

$300.00

21

Spine Specialist
Evaluation

1 time only

$350.00

$350.00

Vocational
Rehabilitation

1 time only

$4,500.00

$4,500.00

Total

$10,339.00
viii. Projected Therapeutic Modalities

The following projected therapeutic modalities are recommended:
Item/Service

Frequency

Cost Per Unit

Cost Over 1 Year
(Cure)

Cervical Epidural
Steroid Injections

3 times only

$3,300.00

$3,300.00

Occupational Therapy

1 time/year

$2,040.00

$2,040.00

Physical Therapy

1 time/year

$1,940.00

$1,940.00

Lumbar Epidural
Steroid Injections

3 times only

$2,500.00

$2,500.00

Speech/Cognitive
Therapy

1 time/year

$688.00

$688.00

Psychotherapy

1 time/week

$120.00

$6,240.00

Psychotherapy (again)

1 time/month

$120.00

$1,440.00

Psychotherapy (again)

4 times/year

$120.00

$480.00

Psychotherapy (again)

2 times/year

$120.00

$240.00

Psychiatrist

4 times/year

$180.00

$720.00

Psychiatrist (again)

2 times/year

$180.00

$360.00

Total

$19,948.00

Based on the foregoing calculations, which are based on the various potential
medical expenses listed Dr. Gorman’s life-care plan for Raymond Howard, the Court
22

finds, for purposes of this Rule 68 analysis only, that a reasonable estimate of the value
of the Raymond’s future cure award is $51,980.18 through September 30, 2016, as
reflected in the chart below:
Category
Durable Medical
Items
Financial
Management

1 year total:
$160.00
$0

Future Medical Care
Routine

$15,818.50

Health and Strength
Maintenance

$712.00

Home Care

$1,200.00

Medications

$3,802.68

Projected Evaluations

$10,339.00

Projected Therapeutic
Modalities

$19,948.00

Total

$51,980.18

The jury awarded Raymond damages for future medical expenses in the amount of
$12,500.00, and OLB is entitled to an offset in that amount against Raymond’s future
cure award because the law does not permit double recovery. After deducting $12,500.00,
a reasonable estimate of the value of Raymond’s future cure award is $39,480.18 through
September 30, 2016. This figure, when added to the damages awarded Raymond, 50% of
his “pre-offer costs,” and the Court’s estimate of the value of Raymond’s maintenance
award, brings Raymond’s total recovery in this matter to $290,155.64 62:

62 The Court notes, moreover, that this figure is likely much larger than what Raymond will actually incur
as cure prior to September 30, 2016, given the many benefits of the doubt the Court has afforded Raymond.
23

Damages

$164,000.00

Pre-offer costs 63

$79,220.46

Cure

$39,480.18

Maintenance

$7,455.00

Total
(with cure)

$290,155.64

At the end of the day, having estimated the value of Raymond’s pre-offer costs and
future maintenance award, and having been very generous in estimating the value of
Raymond’s future cure award, the Court finds that Raymond’s final recovery was less than
OLB’s $500,000.00 offer of judgment. Therefore, although Raymond, as a prevailing
party, may recover his pre-offer costs from OLB under Rule 54(d), Raymond must pay
OLB’s post-offer costs pursuant to Rule 68(d).
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motions to tax costs 64
considered by the Court herein are GRANTED IN PART. Plaintiffs Raymond Howard
and Calvin Howard are the prevailing parties in this action and, as a result, are entitled to
recover from OLB 50% of their pre-offer costs under Rule 54(d). Pursuant to Rule 68(d),
OLB is entitled to recover its post-offer costs from Plaintiffs.
IT IS FURTHER ORDERED that this matter is referred to the office of the Clerk
of Court for the taxation of costs in accordance with this ruling.
New Orleans, Louisiana, this 24th day of June, 2016.
_______________________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
As explained infra, the Court uses the total-cost figure alleged by Raymond, without respect to whether
pre-offer of judgment or post-offer, for purposes of this analysis.
64 R. Docs. 875, 877, 878.
24
63