Dunn v. Marquette Transportation Company, LLC

Filing 39

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Eldon E. Fallon on 9/6/2017.(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KELVIN DUNN

*

CIVIL ACTION

VERSUS

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NO. 16-13545

MARQUETTE TRANSPORTATION COMPANY, LLC

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SECTION "L"(5)

FINDINGS OF FACT AND CONCLUSIONS OF LAW
I.

FACTUAL AND PROCEDURAL HISTORY

This case arises out of injuries allegedly sustained by Plaintiff Kelvin Dunn (“Plaintiff”)
on or about August 21, 2015 while he was employed as a relief captain on the M/V ST. RITA,
which at the time of the accident was located in the intracoastal waterway in Bolivar, near
Galveston, Texas. Specifically, Plaintiff alleges that he slipped and fell on diesel fuel that had
accumulated in the engine room due to a fuel leak on the vessel and sustained injuries to his leg,
hip, and back.
On August 3, 2016, Plaintiff filed a complaint against Defendant Marquette
Transportation Company, LLC (“Marquette”), the owner of the ST. RITA, and Plaintiff's
employer at the time of the accident. He seeks damages under the Jones Act, 46 U.S.C. § 30104,
and general maritime law for Defendant’s alleged negligence and vessel unseaworthiness.
Defendant denies liability claiming that Plaintiff’s injuries were caused in whole or in part by
Plaintiff’s own actions.
This matter came on for trial without a jury on July 10, 2017. The trial lasted two days.
The Court has carefully considered the testimony of all of the witnesses, the exhibits entered into
evidence during the trial, as well as 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.
1

To the extent that any findings of fact may be construed as conclusions of law, the Court hereby
adopts them as such. To the extent that any conclusions of law constitute findings of fact, the
Court adopts them as such.
II.

FINDINGS OF FACT
(1)

Plaintiff Kelvin Dunn is an individual of the age of majority and a resident of Louisiana.
(2)
Defendant Marquette Transportation is the owner of the M/V ST. RITA, a tug boat which
was maneuvering loaded chemical barges into their proper position in the fleeting area, more
specifically, the Kirby Fleet area in the intracoastal waterway in Bolivar, near Galveston, Texas at
the time of Plaintiff’s accident.
(3)
At all relevant times, Plaintiff was employed by Defendant Marquette Transportation, as a
seaman or member of the crew of the M/V ST. RITA, in the capacity of relief captain. Plaintiff’s
job duties required him to steer the vessel and supervise the crew, as well as walk up and down
stairs, along with some other moderate physical activity.
(4)
The M/V ST. RITA has a two-level engine room, with a center stairway that leads from
the upper/mezzanine level of the engine room to the lower engine room. The stairway lands on
the lower engine room deck just aft of the front of the port and starboard engines, and directly
between the port and starboard engine.

2

(5)
The engine room contains the two generators for the vessel. The M/V ST. RITA relies on
one generator at a time, and automatically switches between these generators every twelve hours.
The generators can also be shut off manually. In that case, the running generator would be turned
off, and power would be manually switched to the other generator. The vessel is also equipped
with an emergency shut off switch, which will shut off both generators, and thus all power to the
vessel, simultaneously.
(6)
The switch to shut off individual generators is located on the generators themselves. The
emergency shut-off switch is located outside of the engine room near the door.
(7)
When the emergency shut-off switch is activated, the vessel’s engines are shut off. The
vessel does have some back-up battery power, but this will only run the emergency lights and
radio. Without power, the vessel can still maneuver its rudders, but the rudders are insufficient to
adequately and safely steer the vessel.
(8)
The morning of the accident, the M/V ST. RITA was pushing two loaded chemical
barges, at a speed of five knots. These barges had a ten foot draft, four feet wide and three
hundred feet long. The M/V ST. RITA was approaching the Kirby Fleet where it would
maneuver the loaded barges into the proper position in the fleeting area.
(9)
Just before 5:00 a.m., Plaintiff was awakened by the sound of the vessel’s engines
“backing down” as the on-duty pilot was struggling to align the chemical barges in the fleeting

3

area. Plaintiff left his bunk room, and went to the helm to assist Pilot Julius Brown. When he
arrived at the helm, Plaintiff found the M/V ST. RITA was “sideways” trying to swing the head
of the tow around to land a single barge level in the fleet. Plaintiff temporarily took over the
controls and radioed for another tug in the fleet to come act as an assist boat. With an assist tug
alongside and Plaintiff operating the controls, the tow was straightened back out and landed in an
ordinary manner alongside the fleet.
(10)
As Plaintiff was preparing to return to his bunk room to get ready for his shift, Corey
Crespo, a deckhand on the M/V ST. RITA, radioed and said, “there’s some diesel or some fluid
spraying from a generator in the engine room.” Plaintiff left the helm and proceeded down the
stairs to the mezzanine deck of the engine room to investigate the fuel leak. Upon assessing the
leak, Plaintiff determined the safest response was to switch generators, rather than using the
emergency cut-off switch, which would shut off power to the entire vessel. To shut off the
leaking starboard generator and switch power to the port generator, Plaintiff would need to use
the shut off switch located on the generator itself, which was only accessible from the floor of
the engine room.
(11)
Plaintiff entered the engine room on the mezzanine level, then proceeded down the stairs
to the first floor of the engine room, where the generators were located. When Plaintiff reached
the bottom of the stairs, he turned to his left (towards the starboard engine) and then proceeded
between the stairway and the starboard engine forward towards the running starboard generator.
Corey Crespo had followed Plaintiff into the engine room and down the stairs. As soon as
Plaintiff and Crespo reached the decking, they slipped on the accumulated diesel fuel. Crespo

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nearly fell, but was able to catch himself on nearby equipment. Plaintiff fell and landed hard on
his right hip resulting in a severely fractured femoral head.
(12)
After the fall, Plaintiff was unable to move and another deckhand came down into the
engine room to assist with the transfer of generator power. When the starboard generator was
shut down, the fuel leak stopped. Pilot Brown then returned the vessel to the fleet and called for
an ambulance. Within the hour paramedics arrived and Plaintiff was evacuated to a hospital in
Galveston, where he underwent emergency treatment and a surgery where four screws were
placed in his hip to stabilize and reduce the hip fracture.
(13)
At the time of the accident, Plaintiff was wearing a pair of athletic Nike slide shoes with
rubber soles. These slide shoes were not in compliance with Marquette’s safety requirements for
working on the deck or in the engine room. However, Corey Crespo testified that he was wearing
safety work boots with rubber soles when he entered the engine room. Both Plaintiff and Crespo
slipped when they attempted to enter the engine room.
(14)
While Plaintiff was not on duty at this time, he was the captain of the vessel and was well
aware of Marquette’s safety regulations which required employees to wear closed-toed shoes
while on deck and in the engine room. However, even if Plaintiff had been wearing steel-toed
shoes, he still would have slipped. Corey Crespo slipped while wear steel-toed boots. While he
was able to catch his fall, he did so by grabbing on to adjacent equipment, and not because his
footwear completely prevented a slip. Further, steel-toed boots are generally effective at
preventing injury caused by heavy objects dropping on an employee’s foot; generally, they are

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not required because of their anti-slip properties. As Captain Nichols testified, if Plaintiff had
been wearing steel-toed boots he still would have slipped; once there is diesel fuel on the bottom
of your shoes, you are going to slip. While it is undeniable that closed-toe boots were required
footwear for crew members working in the engine rooms, Corey Crespo, who was wearing
boots, also slipped because of the diesel fuel. Captain Dunn was in violation of company safety
policy and therefore negligent in not wearing the required boots; however, his negligence, in this
regard, was not the cause of his fall or injury.
(15)
Further, the Court expressly finds that Plaintiff’s decision to enter the lower-engine room
to shut down the starboard generator and stop the fuel leak was a reasonable choice under the
circumstances. The tug was approaching a barge fleeting area, pushing two loaded chemical
barges. If Plaintiff had used the emergency shut-off switch outside of the engine room, he would
have killed all power on the vessel. The tug had only recently regained complete control of the
two barges, as the current had pushed them sideways and a second assist tug was required to get
the barges back in place. Cutting off power, and the ability to navigate, would have resulted in
two loaded chemical barges and a tug with a diesel leak in the engine room floating—
uncontrolled—towards an entire fleet of chemical barges.
Rather than make a choice which would have exacerbated the dangerous situation already
unfolding on the vessel, Plaintiff decided to enter the engine room to, as he phrased it, “fix the
situation.” He could not see the source of the leak from the top of the stairs, so proceeded down
the stairs to the main level of the engine room when he slipped and fell on the accumulated fuel.

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(16)
The Court has reviewed the evidence presented regarding the fuel leak and finds that the
factual issues surrounding this aspect of the case are not significantly in dispute. Port engineer,
Walter Hayes, who was responsible for coordinating and performing the maintenance aboard the
ST. RITA, testified at trial. He explained that three days prior to the accident, he went aboard the
M/V ST. RITA to repair one of the main engine gears. While working, he noticed that the fuel
filter housing to the starboard generator appeared to be worn, so Hayes ordered a new fuel filter
housing and replaced it at the same time that the main engine gear repair was underway. After
installation, Hayes inspected the fitting, found it was acceptable, cleaned it, placed Teflon on its
threads and reinstalled it to the new housing. Hayes then said that he restarted the generator and
tested the new assembly and found that all the fittings were holding tight and not leaking diesel
fuel.
(17)
Hayes also repaired the fuel pressure gage after the leak and the resulting accident. He
explained that the leak began when the stem which connects the valve to the fuel filter housing
broke in half. He had never known one of these stems to fail before, and had no reason to believe
it would break after he completed the initial repair. Nonetheless, the broken fuel pressure gauge
was the direct cause of the dangerous condition which rendered the vessel unseaworthy.
Plaintiff’s fall and injuries were caused directly by the unseaworthy condition of the broken fuel
pressure gauge and the Defendant’s negligence in failing to provide the Plaintiff with a safe
place to work.

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(18)
Plaintiff has undergone significant medical treatment as a result of the accident. This
treatment included an emergency surgery to stabilize his broken hip, injections in the facet joints
of the lower back, an epidural steroid injection, as well as physical therapy and medication.
Plaintiff underwent emergency surgery under general anesthesia to place four 7.3mm stabilizing
screws in the broken hip. He then attended 25 physical therapy sessions.
On August 25, 2015, he was discharged from University of Texas Medical Branch and
returned to his home in Denham Springs, Louisiana. He followed up with Dr. David Pope at the
Bone and Joint Clinic in Baton Rouge, Louisiana. Dr. Pope was a physician selected by
Marquette to follow Mr. Dunn’s recovery. Dr. Pope testified (by deposition) that he was familiar
with Dr. Craig Greene as a hip and trauma specialist, and that he would defer to Dr. Greene
regarding future medical treatment as it related to Mr. Dunn’s hip, since Dr. Greene had taken
over Dunn’s care. Dr. Pope also stated that he would defer to his partner, Dr. Kevin McCarthy (a
spine specialist), regarding opinions relating to Mr. Dunn’s lumbar spine. Although Dr. Pope did
release Mr. Dunn to return to work, Mr. Dunn’s consistent complaints of lumbar spine pain while
treating with Dr. Pope were never addressed. Mr. Dunn also underwent extensive physical
therapy at Peak Performance Physical Therapy between September, 2015 and March, 2016
which involved electrical stimulation, flexibility exercises, isometric hip abduction exercises,
and dynamic and stabilization training.
(19)
On April 4, 2016, Kelvin Dunn sought a second opinion with Dr. Craig Greene, a hip and
trauma specialist at Baton Rouge Orthopedic Clinic. Dr. Greene performed an extensive
evaluation on Dunn and opined Mr. Dunn will need a total hip replacement before he reaches the

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age of 50, and since the hardware will not last the rest of his life, he will need a revision surgery,
i.e., a second total hip replacement surgery somewhere down the road. Dr. Greene also testified
that, prior to any hip replacement surgery, he would recommend hardware removal surgery,
whereby Mr. Dunn would be placed under general anesthesia in a hospital setting, and Dr.
Greene would remove the four large screws from plaintiff’s femur. Dunn testified that he
remains in significant pain in his right hip and he is ready to proceed with the hardware removal
surgery. Dr. Green referred Dunn to Dr. Jeremy Comeaux, a physical medicine and rehabilitation
specialist.
(20)
Dr. Jeremy Comeaux first saw Kelvin Dunn on May 5, 2016, at which time he ordered a
CT scan of the lumbar spine. This CT scan was performed at Imaging Center of Louisiana on
June 20, 2016, and it revealed multiple abnormalities including a herniated lumbar disc at the
L4-5 level, lumbar retrolisthesis, and facet hypertrophy. Dr. Comeaux opined that all of Mr.
Dunn’s ongoing hip and lumbar spine complaints are indeed related to the August 21, 2015
accident in question, and that the need for ongoing care as it relates to the lumbar spine would
also be related to that traumatic event. On December 2, 2016, Dr. Comeaux performed a lumbar
epidural steroid injection under fluoroscopic guidance. Dunn testified that this injection helped
with his pain for approximately one month. Dr. Comeaux eventually referred Mr. Dunn to
orthopedic spine surgeon, Dr. Kevin McCarthy, who also practices at the Bone and Joint Clinic
with Dr. David Pope.
(21)
Dr. Kevin McCarthy saw Kelvin Dunn for the first time on December 15, 2016. Dr.
McCarthy’s examination and treatment focused on Mr. Dunn’s facet joints in his lower back. He

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also felt that the retrolisthesis (shifting of the vertebrae) could definitely be a source of pain for
Mr. Dunn. Dr. McCarthy gave Mr. Dunn his first round of facet injections on January 20, 2017.
He injected two joints on each side of the spine with an anesthetic and a steroid medication under
fluoroscope. Plaintiff did receive temporary relief from the injections, which suggested to Dr.
McCarthy that his back pain was coming from the facet joints. Plaintiff underwent a second
round of facet joint injections on June 20, 2017, which appear to have provided him with some
relief. Dr. McCarthy testified that Mr. Dunn would benefit from additional treatment for the
lumbar spine in the form of rhizotomies over the next ten-year period. Rhizotomy is a procedure
that utilizes radio frequency waves to produce heat on the nerves surrounding the lumbar spine.
This prevents the nerve from being able to transmit pain signals to the brain. Dr. McCarthy
further testified that Kelvin Dunn will eventually need a lumbar spine fusion at some point in his
lifetime as a result of the subject accident and resulting injuries. Dr. McCarthy also related all of
the symptoms for which he was treating Kelvin Dunn, as well as the need for the future care
(office visits, diagnostic studies, rhizotomies and ultimately a lumbar spine fusion) to the subject
accident.
(22)
Plaintiff was also seen by the Defendant’s independent medical expert, Dr. Christopher
Cenac, Jr., in Houma, Louisiana. After examining Plaintiff, Dr. Cenac opined that Mr. Dunn
would benefit from hardware removal from his hip. He also testified that he agrees with Dr.
Greene in that he feels Mr. Dunn will eventually require a total hip replacement of the right hip,
although he did not give a specific timeline, nor did he comment on Mr. Dunn’s need for a
revision hip surgery at some point in the future. Dr. Cenac further testified that the facet
injections and subsequent rhizotomies being recommended by Dr. McCarthy were reasonable

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and necessitated by symptoms arising from the subject accident; however, he testified that there
was no indication that Plaintiff’s injuries would require a lumbar fusion in the future.
(23)
Marquette’s Claims Manager, Ronnie Dupuy, testified that Marquette initiated
maintenance payments as of the date of incident and has continued these payments through the
date of trial. Aside from the outstanding medical expenses submitted by Plaintiff at trial, the
Court finds that Marquette continually and systematically paid all medical expenses and
maintenance obligations up-through the date of trial.
Having considered the testimony of all the doctors, the Court finds that Plaintiff will not
reach maximum medical improvement until he has had the hardware surgically removed from
his hip, and has had adequate time to recover from that surgery. Thus, Defendant is responsible
for paying maintenance from the date of trial up until Plaintiff recovers from the removal
surgery. Based on the testimony of the doctors, the Court finds Plaintiff will reach maximum
medical improvement three months from the date of the removal surgery.
(24)
Marquette shall have 60 days to review the charges which have been incurred by the
Plaintiff, but not yet submitted, and to reimburse Plaintiff for same.
(25)
At the time of his injury the plaintiff was 39 years old. He attended some high school,
although he did not graduate. Recent vocational testing indicates that Plaintiff has 6th grade
reading comprehension and 4th grade math proficiency. Plaintiff has never obtained a GED.
Kevin Dunn had an extensive maritime work history. He began working on boats at the age of 19

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and started as a deckhand trainee and worked until finally promoted to captain. Dunn worked on
the ST. RITA for four years.
(26)
The Court finds that Plaintiff’s work life expectancy is 16.4 years and his life expectancy
is 37.8 years. His post-tax wages for the year of the accident annualize to $124,500. He worked
through August 21, 2015 and has not worked since that date. Based on the medical expert
testimony presented by both parties, the Court finds that Plaintiff’s injuries will prevent him
from ever returning to his position as a captain aboard vessels. However, the evidence supports
the conclusion that he is not permanently, totally disabled. After a time he will be able to return
to some gainful activity requiring less physical demands.
(27)
Plaintiff’s life care planner and economic expert, Stephanie Chalfin testified that if and
when Mr. Dunn was able to return to work, based on his work history, his limited education, and
his physical limitations as a result of the subject accident, Mr. Dunn would likely be relegated to
sedentary/light duty employment earning between $8.55 to $9.00 per hour. In particular, the
Court notes that Plaintiff does not have a high school diploma and tested well-below the twelfthgrade level in both reading and math. Based on this evidence, the Court finds that Plaintiff could
earn $18,000 annually in a new occupation given his limited education, training, experience, and
physical limitations.
Defendant’s vocational rehabilitation expert, Ronnie Ducote, testified Dunn was qualified
for a range of medium level jobs ranging from a scale operator to a custodial supervisor with
earnings in the range of $40,000.00 - $50,000.00 per year. However, the Court finds that these
salaries are unrealistic given Plaintiff’s education, training, and experience. The entirety of

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Plaintiff’s work experience has taken place on vessels. Due to his physical limitations as a result
of the accident, he is no longer able to perform this type of work. He does not have skills or
experience that will transfer into most other land-based positions that are available to someone
with his work restrictions. Additionally, while Mr. Ducote testified Plaintiff could earn up to
$125,000 if he opened his own tattoo parlor, the Court finds this is not a reasonable future salary
based on Plaintiff’s training, experience, and education level.
(28)
Using Chalfin’s figures on loss of earnings as applied by Plaintiff’s expert forensic
accountant, John Theriot, the Court finds that Plaintiff’s annual salary for the purposes of
computing his past and future lost wages is $124,000.00, plus fringe benefits that his employer
paid such as 401K contributions and food. These figures are based on Mr. Dunn’s welldocumented earnings history as a boat captain.
Plaintiff has not worked since the date of the accident on August 21, 2015 through the
date of trial on July 10, 2017. This represents 1.89 years, at an annualized salary of $124,000 a
year. Therefore, Plaintiff is entitled to recover $234,360 in lost wages. Any wages that Defendant
paid to Plaintiff after the date of his accident shall be deducted from this amount.
The Court finds that Plaintiff lost fringe benefits and the cost of meals during this period.
Specifically, Plaintiff lost fringe benefits, such as 401K contributions and health care that would
have been paid by his employer during this period. According to Plaintiff s economist, these
benefits amount to 14.61% of his annual wages. Thus, Plaintiff is entitled to an additional
$34,240 in past loss of fringe benefits. Finally, the evidence demonstrated that Plaintiff was
provided meals as another benefit of his employment. Plaintiff received meals on the days he
was on a hitch, which amounts to $2,392 annually. This total is based on the total number of

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meals provided each year, multiplied by the average cost of a home meal as determined by the
Department of Agriculture. Thus, Plaintiff shall receive an additional $4,520.88 to compensate
him for lost meal benefits from his accident to the date of trial, less the maintenance payments
paid to him until he reaches MMI.
Plaintiff will also sustain future losses of wages, fringe benefits, and meals. First,
Plaintiff is not yet employed, and must endure additional surgeries before he is fit to return to
work. Given his required future medical treatment, the Court finds it is unlikely Plaintiff will
return to work within two years from the trial date. Thus, the Court will not assume any offsets to
Plaintiff’s future lost wages due to alternate employment during the next two years. Based on an
annual wage of $124,000, Plaintiff is entitled to future lost wages in the amount of $248,000 for
the next two years. Reduced to present value, this amounts to $244,329.
Additionally, during the next two years Plaintiff will suffer losses of fringe benefits and
meals. As discussed above, Plaintiff received a benefit of $2,392 annually in meals. His fringe
benefits amounted to 14.61% of his base salary. Together, his fringe benefits and meals are
valued at $20,508.40 annually. Reduced to present value, this amounts to $40,409.75 for the two
year period before Plaintiff returns to work.
Both parties agree that Plaintiff’s work-life span is at least 16.4 years from the date of
trial. The Court finds that after Plaintiff has the hardware removal surgery and has had adequate
time to recover, he will be able to secure alternative employment with earnings of $18,000
annually. This amount will reduce his loss of wages accordingly. Therefore, for the 14.4
remaining years in Plaintiff’s work life, his annual lost wages will be $106,000. Adjusted to
present value, the Court finds that Plaintiff is entitled to $1,420,792.00 in lost wages for the
remaining 14.4 years of his work life.

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Moreover, Plaintiff will sustain losses of fringe benefits and meals during this time.
Fringe benefits amount to 14.61% of his salary; however, it is reasonable to assume that any new
employment would also include some of these benefits. As such, Plaintiff is entitled to
compensation for 14.61% of the difference between his former salary and the salary he earns in
alternate employment. Thus, Plaintiff is entitled to 14.61% of $106,000, or $15,486 annually, in
lost fringe benefits. He is also entitled to $2,392 annually for lost meals. These benefits total
$17,878 annually. Adjusted to present value, Plaintiff is entitled to receive $239,631.35 in fringe
benefits and lost meals for the remaining 14.4 years of his work life expectancy.
(29)
Plaintiff’s prior medical history indicates he was treating for anxiety and panic disorder
in the few years before the accident. In relation to this treatment, Dr. Rachael Wissner prescribed
Plaintiff a generic form of Ativan, which he explained he took as needed, but never while he was
on the vessel. While Defendant argued this medication would have prevented him from
continuing as a captain, the Court disagrees. The evidence demonstrates that Mr. Dunn was a
long term and excellent employee for Marquette, and its predecessor company, Eckstein Marine.
Other than a brief stint with Crosby, Dunn testified he spent his entire work life on the water
with Eckstein and Marquette. While employed with Marquette, Dunn was promoted through the
ranks from deckhand ultimately ending up as a relief captain. He never had any disciplinary
issues while employed at the company. Dunn provided consistent service as a captain to the
company between 2010 and 2015, and he never failed a single random drug test. There was no
evidence of any alcohol or controlled substances in his system following the subject accident.

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III.

CONCLUSIONS OF LAW
(1)

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1333, which provides
original jurisdiction over admiralty or maritime claims, and the Jones Act, 46 U.S.C. § 688.
Venue is proper because the Defendants are subject to the personal jurisdiction of this Court.
(2)
Plaintiff has designated this matter as an Admiralty and Maritime claim within the
meaning of Federal Rule of Civil Procedure 9(h), and as such, this matter is appropriately being
tried to the bench as opposed to a jury.
(3)
The testimony presented clearly establishes that Kelvin Dunn was a Jones Act seaman at
the time of the August 21, 2015 accident. Defendant did not contest Plaintiff’s status as a seaman
at trial. The substantive law applied to this case is the Jones Act and general maritime law.
(4)
The matters before this Court include determination as to whether the vessel was
unseaworthy under general maritime law, whether Defendant was negligent under the Jones Act,
whether Plaintiff was contributorily negligent, and the nature and extent of Plaintiff’s injuries.
(5)
“To establish a claim for unseaworthiness, the injured seaman must prove that the owner
has failed to provide a vessel, including her equipment and crew, which is reasonably fit and safe
for the purposes for which it was intended to be used.” Boudreaux v. United States of America,
280 F.3d 461, 468 (5th Cir. 2002) (quoting Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir.
2001)). “The standard is not perfection, but reasonable fitness; not a ship that will weather every
conceivable storm but a vessel reasonably suited for her intended service.” Boudoin v. Lykes

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Bros. S.S. Co., 348 U.S. 336, 339 (1955). “A vessel's condition of unseaworthiness might arise
from any number of circumstances. Her gear might be defective, her appurtenances in disrepair,
her crew unfit. The number of men assigned to perform a shipboard task might be insufficient.
The method of loading her cargo, or the manner of its stowage, might be improper.” Usner v.
Luckenbach Overseas Corp., 400 U.S. 494, 499-500 (1971) (internal citations omitted); see also
Webb v. Dresser Indus., 536 F.2d 603, 606 (5th Cir. 1976), cert. denied, 429 U.S. 1121 (1977). A
vessel is unseaworthy when an unsafe method of work is used to perform vessel services. Rogers
v. Eagle Offshore Drilling Serv., 764 F.2d 300, 303 (5th Cir. 1985); Burns v. Anchor-Wate Co.,
469 F.2d 730 (5th Cir. 1972). The duty of the vessel owner to provide a seaworthy vessel is an
absolute non-delegable duty.
(6)
To recover damages from an unseaworthy condition, the plaintiff is required to establish
a causal connection between his injury and the breach of duty that rendered the vessel
unseaworthy. Id.; see also Gavagan v. United States, 955 F.2d 1016, 1020 (5th Cir. 1992)
(quoting Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1354 (5th Cir.1 988)) (“To establish the
requisite proximate cause in an unseaworthiness claim, a plaintiff must prove that the
unseaworthy condition played a substantial part in bringing about or actually causing the injury
and that the injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.”).
(7)
Defendants had a non-delegable duty to provide Plaintiff with a safe place to work and
provide seaworthy equipment on the vessel. The credible evidence supports the finding that
Marquette breached this duty as it failed to properly maintain its vessel, the M/V ST. RITA,

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specifically the fuel gauge on the starboard generator. This unseaworthy condition directly
caused the fuel leak and the dangerous condition Plaintiff encountered on August 21, 2015.
The Court hereby concludes that the vessel was unseaworthy and Plaintiff's injuries and
resulting damages were proximately caused by the vessel's unseaworthiness, as well as the
defendant’s negligence in failing to provide him with a safe place to work.
(8)
Comparative negligence may apply to decrease the amount of a plaintiff seaman's
recovery on a Jones Act claim for negligence. Jauch v. Nautical Services, Inc., 470 F.3d 207,
213 (5th Cir. 2006). “A seaman's contributory negligence will not bar his recovery, but may
reduce the amount of damages owed proportionate to his share of fault.” Id. “The standard of
care for a seaman under the Jones Act is to act as an ordinarily prudent seaman would act in
similar circumstances.” Jackson, 245 F.3d at 528; Gautreaux, 107 F.3d at 338-39; see also
Norfolk Southern Ry. Co. v. Sorrell, 127 S.Ct. 799 (2007).
(9)
Having considered the testimony of the fact witnesses and expert witnesses presented by
both sides, the Court has determined that Plaintiff violated the company’s safety rule regarding
proper footwear in the engine room and was therefore negligent. 1 However, his negligent actions
were not a cause of his fall and resulting injury. 2 The evidence clearly supports the conclusion
that the cause of his fall, as well as his fellow crew member’s fall, was the slippery condition of
the engine room decks which rendered the vessel unseaworthy.

1

Company policy requires crew members to wear steel-toed boots. However, the purpose of this
policy is to prevent injury if something falls on a crew member’s foot, rather than to prevent
them from slipping on diesel fuel.
2
“To establish that a seaman is contributorily negligent, an employer must prove negligence and
causation.” Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008) (emphasis added).
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(10)
Furthermore, the Court does not find that Plaintiff was contributorily negligent in his
decision to enter the engine room and shut off the starboard generator. A seaman is "obligated
under the Jones Act to act with ordinary prudence under the circumstances," which
circumstances take account of the seaman's "experience, training, [and] education." Martinez v.
Offshore Specialty Fabricators, Inc., 481 Fed. App’x. 942, 947 (5th Cir. 2012) (quoting
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir. 1997) (en banc)). However,
“[w]here one is confronted through no fault of his own with a sudden emergency, his actions in
extremis are not to be judged as they would be in ordinary circumstances.” Fruit Indus., Inc. v.
Petty, 268 F.2d 391, 394 (5th Cir. 1959). Captain Dunn was faced with an emergency. He had to
choose between shutting off all power to the vessel, which was pushing two loaded chemical
barges towards the fleeting area, after already been pushed off course by the current or entering
the engine room to see if he could stop the leak. The Court finds that Captain Dunn’s response to
this emergency was reasonable under the circumstances. He chose the response which, based on
his training and experience, would expose the other crew members and the vessel to the least
amount of risk.
(11)
Under the Jones Act and general maritime law, an injured seaman is entitled to monetary
recovery for past, present and future loss of earning capacity and wages, medical expenses, and
pain and suffering resulting from an injury caused by negligence and/or unseaworthiness. Cortes
v. Baltimore Insular Line, 287 U.S. 367, 377, 1933 AMC 9, 14 (1932).

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(12)
As discussed in full above, the evidence supports the conclusion that Plaintiff has aftertax past lost earnings of $234,360.00 and future wage loss (after commuting to present value and
accounting for earnings in non or light laborious work) of $1,665,121.00 (Pl. Report of John
Theriot, Report of Kenneth J. Boudreaux, Ph.D.).
(13)
Defendant has paid all of Plaintiff's past medical bills which were submitted at the time
of trial. Plaintiff submitted additional medical expenses on the day of trial. Therefore, Marquette
shall have 60 days to review the charges which Plaintiff recently submitted, and to reimburse
Plaintiff for same.
(14)
Regarding future medicals, the evidence indicates that the hardware removal surgery and
post-surgery physical therapy are estimated to cost $11,992.00. Both Dr. Greene and Dr. Cenac
agree that Mr. Dunn will require a total hip replacement in the future. Dr. Greene testified this
surgery will take place before Mr. Dunn reaches the age of 50, and as hip replacements only last
10-12 years, he will ultimately need another hip replacement revision surgery.
Based on the report of Plaintiff s forensic accountant, John Theriot, the cost of
Plaintiff s first hip replacement will be $52,444. That surgery will take place in approximately
ten years; thus, once adjusted to present value, the cost of that hip surgery will be $59,434.
The Court finds that the expected life of a hip replacement is ten years; Plaintiff has an
estimated life expectancy of 37.8 years. Thus, he will need-at minimum--one revision hip
replacement during his lifetime. According to the evidence, this procedure will cost $78,973

20

and take place when Plaintiff is in his late 60s. Adjusted for future value, this procedure will
cost $114,947.
Next, the credible evidence indicates that Plaintiff will require a bilateral endoscopic
rhizotomy every 12-18 months for the next ten years. While the Court agrees that Plaintiff will
need ongoing treatment, the evidence demonstrates that the need for these procedures will
decrease as Plaintiff improves following the hardware removal procedure. Thus, the Court finds
that Plaintiff will only require this procedure every 24 months for the next ten years. According
to Plaintiff's life care planner, each bilateral endoscopic rhizotomy will cost $33,910. This
averages to an annual cost of $16,955 every year for the next ten years. Thus, the present value
of this treatment is $160,585.89.
Additionally, the evidence demonstrates that Plaintiff will require follow-up orthopedic
treatment, physical medicine, rehabilitation and injections for the remainder of his life. While
Plaintiff estimates these treatments may need to occur up to six times per year, the Court finds
that the evidence demonstrates Plaintiff's condition will substantially improve after the hardware
is removed from his hip, and again after each of his hip replacement surgeries. Thus, the Court
finds Plaintiff will need to attend orthopedic follow-up visits twice a year, for a discounted cost
of $10,408. Likewise, Plaintiff will need to seek follow-up care in physical medicine three times
per year, for a total cost of $21,886. Finally, Plaintiff will need annual lumbar injections for a
total cost of $81,061. The total cost of this lifetime treatment $113,355.
Further, Plaintiff’s injuries will require ongoing physical therapy and medication.
Plaintiff's life care planner indicates that he will need physical therapy for ten years; the Court
finds this is reasonable based on the nature and extent of his injuries. However, the Court finds
that Plaintiff will likely only require 6-12 weeks of therapy every two to three years during this

21

period, as his condition will improve with his additional surgical procedures. The cost for this
therapy is $32,415. Finally, Plaintiff will require medication, specifically Mobic and Tramadol
for the duration of his life. The annual cost of these prescriptions is $641; adjusted to present
value this amount is $31,426.
Regarding the lumbar spine, the weight of the evidence presented at trial shows that Dr.
McCarthy, Dr. Comeaux, and Dr. Cenac all agree that Mr. Dunn would benefit from long-term
pain management care in the form of facet joint injections and rhizotomies. Although one doctor
disputes Mr. Dunn’s need for surgery, two-level lumbar spine fusion, the weight of the evidence
supports Dr. McCarthy’s conclusion that the surgery is required as a result of his injuries. Mr.
Dunn was an outstanding worker for 12 years and there is no indication of back problems prior
to the hip injury; the lumbar spine injury occurred subsequent to the fall. Dr. McCarthy is
uncertain as to the exact time Plaintiff will require this surgery, but it is likely that it will be
needed in the near future. Based on the report of Plaintiff s forensic accountant, John Theriot,
the cost of Plaintiff s lumbar fusion surgery will be $148,707. Due to a lack of certainty regarding
the timing of this procedure, the Court will use the present cost rather than increasing it.
Plaintiff's future medicals are summarized as follows:
Hardware Removal Surgery: $11,992
Hip Replacement Surgery: $59,434
Hip Revision Surgery: $114,947
Bilateral Endoscopic Rhizotomy: $160,585.89
Orthopedist, Physical Medicine, Lumbar Injections: $113,355
Physical Therapy: $32,415
Medication: $31,426

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Lumbar Fusion Surgery: $148,707
Total: $641,435.89.
Thus, the Court finds that an award of $641,435.89 for future medical expenses is
appropriate.
(15)
Damages for pain and suffering may be awarded to a seaman who is injured due to the
unseaworthiness of the vessel. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1034 (5th Cir. 1984).
The Plaintiff has suffered physical pain due to his hip injury, surgery, and recovery. He will
undergo additional surgeries in the near future to remove the hardware from his hip, and both
Plaintiff’s treating physician and Defendant’s IME agree Plaintiff will eventually require a full
hip replacement. He is likely to have hip and back pain in the future. The Plaintiff also faces
significant restrictions in his employment due to his injuries. The Court finds that the Plaintiff is
entitled to an award of $100,000.00 for past pain and suffering and $400,000.00 for future pain
and suffering. An award of $500,000 for his past and future pain and suffering is appropriate
given the nature and extend of Plaintiff’s injuries. This award is consistent with other cases
involving similar injuries. 3

3

See Zeno v. Great At!. & Pac. Tea Co., 803 F.2d 178, 181-82 (5th Cir. 1986) (looking to similar
cases to determine award); Klemetsen v. H & R Block, Inc., 569 So. 2d 559, 559-60 (5th Cir. 1990)
(awarding $111,300 for broken hip); Fromenthal v. Delta Wells Surveyors, Inc., 98-1525, p. 12-14 (La.
App. 4 Cir. 10/4/2000); 776 So. 2d 1, 12-14 (awarding $250,000 for hip fracture requiring surgery and
residual pain and disability); Pate v. Skate Country, Inc., 96-0364, p. 1 (La. App. 4 Cir. 10/9/1996); 682 So.
2d 288, 289 (awarding $200,000 for hip fracture); Keyworth v. Southern Baptist Hospitals, Inc., 524 So. 2d
56, 57, 62 (La. Ct. App. 4 Cir. 1988) (awarding $225,000 for hip fracture resulting in mobility restriction);
Graham v. Offshore Specialty Fabricators, Inc., 09-0117, p.21 (La. App. 1 Cir. 1/8/10); 37 So.3d 1002,
1019 (awarding $225,000 for lumbar fusion with severe pain); Bouquet v. Wal-Mart Stores, Inc., 061811 p.1-2 (La. App. 1 Cir. 12/21/07); 978 So.2d 447, 453-54 (awarding $200,000 for lumbar injections
and fusion); Matos v. Clarendon Nat. Ins. Co., 00-2814 (La. App. 1 Cir. 2/15/02); 808 So.2d 841
(awarding $265,000 for multilevel lumbar fusion); Derouen v. Mallard Bay Drilling, L.L.C., 00-1268
p.13 (La. App. 1 Cir. 6/22/01), 808 So.2d 694, 707 (awarding $300,000 for lumbar fusion with residual
disability).

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(16)
A seaman injured in the course of his or her employment has a claim for maintenance and
cure. Maintenance and cure is the implied right of the seaman arising from his or her
employment relationship with the shipowner and is “independent of any other source of recovery
for the seaman (e.g., recovery for Jones Act claims).” Bertram v. Freeport McMoran, Inc., 35
F.3d 1008, 1013 (5th Cir. 1994). Thus, whether the seamen or employer was negligent is not at
issue. Brister v. AWI, Inc., 946 F.2d 350, 360 (5th Cir. 1991); Jauch, 470 F.3d at 212.
Maintenance is the seaman's right to food and lodging and cure is the seaman's right to necessary
and appropriate medical services, and both rights extend to the point at which the seaman reaches
MMI. See Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987) (citing Vaughan v. Atkinson,
369 U.S. 527, 531 (1962)). Therefore, the maintenance and cure duty does not extend to
treatment which is only palliative in nature and “results in no betterment in the claimant's
condition.” Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996).
(17)
The evidence demonstrates that Marquette has paid maintenance and cure from the date
of Plaintiff s injury until the date of trial. The credible evidence supports the conclusion that the
Plaintiff sustained injuries to his hip and back on August 21, 2015 while working aboard the
M/V ST. RITA and that he was unfit for duty as a result of this injury from that date until the
time he is deemed to have achieved MMI. The weight of credible evidence indicates that
Plaintiff has not yet reached MMI. However, Plaintiff will reach MMI three months after he has
the hardware removal procedure. Thus, Defendant would ordinarily owe additional maintenance

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from the date of trial to the date Plaintiff reaches MMI. However, because the Plaintiff will
receive the cost of the meals which were furnished by his employer as part of his future damages,
he is not entitled to any maintenance payments.
(18)
Pre-judgment interest may be awarded in admiralty cases if appropriate, and the Court
finds that an order of pre-judgment interest is appropriate in this case. “Prejudgment interest is
compensation allowed by law as additional damages for lost use of the money due as damages
during the lapse of time between the accrual of the claim and the date of judgment.” Jauch, 470
F.3d at 214-15. However, pre-judgment interest on future damages is not available. Id. The
starting date and rate of interest is left to the sound discretion of the Court. See Doucet v.
Wheless Drilling Co., 467 F.2d 336, 340 (5th Cir. 1972); Marathon Pipe Line Co. v. M/V Sea
Level II, 806 F.2d 585, 593 (5th Cir.1 986), reh'g denied, 811 F.2d 602 (1987). The Court finds
that an award of prejudgment interest is warranted on Plaintiff's past wages and past pain and
suffering.
(19)
On the basis of the above Findings of Facts and Conclusions of Law, the Court finds
that Plaintiff Kelvin Dunn sustained damages due to Defendant's negligence and the
unseaworthiness of the vessel. Therefore, the Plaintiff is entitled to recover the following
damages from the Defendants:
(1) Past wage loss: $234,360.00; 4

4

Any wage payments Defendant made to Plaintiff since the date of the accident shall be deducted
from this amount.

25

(2) Past fringe benefits and meal loss: $38,760.88; 5
(3) Future wage loss: $1,665,121.00;
(4) Future fringe benefits and meal loss: $280,041.10;
(5) Past medical expenses: Marquette paid all past medical bills it received before

trial. It has 60 days to review and remit payment for the medical bills Plaintiff
submitted on the date of trial.
(6) Future medical expenses: $641,435.89;
(7) Past pain and suffering: $100,000.00;

(8) Future pain and suffering: $400,000.00 and
Total: $3,359,718.87. This amount does not include deductions for past wages or other benefits
Defendant paid Plaintiff after the date of the accident, which should be deducted.
(20)
Additionally, Plaintiff is entitled to pre-judgment interest on the above-mentioned past
losses totaling at the rate of 3% percent per annum from the date of judicial demand until
satisfied. Furthermore, the Plaintiff is entitled to post-judgment interest at the federal judicial rate
from the date of judgment until paid.

New Orleans, Louisiana, this 6th day of September, 2017

________________________________
UNITED STATES DISTRICT JUDGE

5

Any payments Defendant made to Plaintiff for fringe benefits, such as health insurance, 401K
contributions, or meal payments since the date of the accident shall be deducted from this amount.

26