Knudson v. M/V American Spirit et al

Filing 90

ORDER granting in part and denying in part defendants' Motion for Partial Summary Judgment 60 , denying without prejudice plaintiff's motion for partial summary judgment dismissing certain affirmative defenses 58 , denying defendants' Motion to Bifurcate 61 and sustaining in part and overruling in part defendants' objections to Order granting motion to compel 74 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY TODD KNUDSON,
Plaintiff,
Case No. 14-CV-14854
vs.
HON. GEORGE CARAM STEEH
M/V AMERICAN SPIRIT, et al.,
Defendants.
_____________________________/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR PARTIAL JUDGMENT ON THE
PLEADINGS [DOC. 60], DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
DISMISSING CERTAIN AFFIRMATIVE DEFENSES [DOC. 58], DENYING
DEFENDANTS’ MOTION TO BIFURCATE [DOC. 61] AND
SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’
OBJECTIONS TO ORDER GRANTING MOTION TO COMPEL [DOC. 74]
This matter arises out of personal injuries allegedly sustained by
Plaintiff Jeffrey Todd Knudson in the service of his employer, Defendant
Liberty Steamship Company (“Liberty”), while serving aboard a Great
Lakes freighter owned by Defendant American Steamship Company
(“American”). The case is before the court on defendants’ motion for partial
judgment on the pleadings or partial summary judgment, plaintiff’s motion
for partial summary judgment dismissing certain affirmative defenses,

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defendants’ motion to bifurcate, and defendants’ objections to the
magistrate judge’s order granting plaintiff’s motion to compel.
FACTUAL BACKGROUND
Mr. Knudson was hired by Liberty as a permanent replacement
worker in March of 2011 after LSC’s negotiations with the union
representing LSC’s unlicensed seamen failed to reach a collective
bargaining agreement. Knudson was a non-union employee.
On January 11, 2012, Mr. Knudson was serving as a General Vessel
Utility, or deckhand, aboard M/V AMERICAN INTEGRITY. The vessel was
approaching the locks at Sault Ste. Marie, Michigan and Knudson was
tasked with going over the side of the vessel to the concrete dock at the
locks below in order to moor the vessel as it passed through the locks.
Vessel crew members were lowered from the deck of the vessel to the
dock face below by way of a bosun’s chair. One of the vessel’s officers
controls the crew member’s descent in the bosun’s chair by way of a line
wrapped numerous times through a cleat on the deck of the vessel. This
process is routine for a seaman and is performed every time any Great
Lakes freighter passes through the locks, takes on fuel, or calls at nearly
any dock. Mr. Knudson had performed this task on numerous occasions.

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On the day in question, another deckhand, Todd Wilde, was put over
the side of the vessel and lowered to the dock without incident. Mr.
Knudson was then prepared to go over the side and join his crewmate.
The vessel’s first mate handling the line that day was Mr. Olney. During
the procedure, one wrap of the line came free of the cleat, causing
Knudson’s descent to the dock, 30 to 35 feet below, to be more rapid than
it should have been. The line is wrapped around the cleat several times,
and in this instance one wrap came free. While Knudson landed on his
feet on the dock face, he contends he was injured as a result of the
incident.
Since the incident, Knudson has been restricted from further duty,
and has been paid maintenance benefits and travel expenses. For the first
two years American paid Knudson at the rate of $8 per day, which was the
rate provided in Knudson’s non-union, non-collectively bargained contract.
Knudson contends that he was forced to live with his father, as he could not
support himself on $8 per day. When Mr. Knudson complained that $8 was
not enough to live on, defendants allegedly provided a Claims Arbitration
Agreement (“CAA”) for him to sign whereby he would acknowledge that
defendants were obligated to pay $8 per day in maintenance and he would
relinquish his right to a jury trial. Mr. Knudson refused to sign the CAA.

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After two years, Mr. Knudson supplied defendants with proof of his
shared living expenses and demanded a maintenance rate of $45 per day.
Defendants ultimately agreed to pay $45 per day, retroactive to the date of
the incident. In all, defendants have paid Mr. Knudson maintenance
benefits and travel expenses in excess of $96,000. Defendants have also
paid Knudson for all out-of-pocket medical expenses and medical bills,
totaling over $89,000.
I.

Defendants’ Motion for Partial Judgment on the Pleadings or
Alternatively Motion for Partial Summary Judgment
A.

Legal Standard
1.

Rule12(c) Judgment on the Pleadings

A motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is reviewed under the same standard as a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). See e.g.,
Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir.
2008). Rule 12(b)(6) allows the Court to make an assessment as to
whether the plaintiff has stated a claim upon which relief may be granted.
Under the Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the Court must
construe the complaint in favor of the plaintiff, accept the allegations of the
complaint as true, and determine whether plaintiff’s factual allegations
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present plausible claims. “[N]aked assertions devoid of further factual
enhancement” are insufficient to “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To survive a Rule
12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide “more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Ass’n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic, 550
U.S. at 555) (citations and quotations omitted). Even though the complaint
need not contain “detailed” factual allegations, its “factual allegations must
be enough to raise a right to relief above the speculative level on the
assumption that all of the allegations in the complaint are true.” Id. (citing
Bell Atlantic, 550 U.S. at 555).
2.

Rule 56 Summary Judgment

Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." See Redding v. St.
Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair

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and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir.
1995).
The standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.'" Amway Distributors Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he
mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original);
see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907
(6th Cir. 2001).

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If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
B.

Jones Act

Under maritime law, the Jones Act authorizes seamen to maintain
negligence actions for personal injury suffered in the course of
employment. 46 U.S.C. § 688. It is the maritime plaintiff’s employer who
has a duty to provide a safe workplace. Churchwell v. Bluegrass Marine,
Inc., 444 F.3d 898, 907 (6th Cir. 2006). Recovery under the Jones Act is
therefore only available to a seaman against the seaman’s employer.
Liberty is Knudson’s employer, while American is the owner of the vessel
but is not the employer. American moves for judgment as a matter of law

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in its favor on Knudson’s Jones Act claim. In its reply brief, Knudson
concedes it has no viable Jones Act claim against American.
However, plaintiff moves for leave to amend to plead a cause of
action for negligence against American as a third party. Plaintiff recently
took the Rule 30(b)(6) deposition of American’s chief operating officer, Mr.
McMonagle, who revealed for the first time that the first mate who allegedly
dropped plaintiff was an employee of American (not Liberty), subjecting
American to vicarious liability for the actions of the first mate. Plaintiff may
amend his complaint as requested to allege negligence against American
based on the fact that its employee was the one who was operating the
bosun chair when plaintiff was dropped.
C.

Unseaworthiness

A shipowner owes the seamen employed on its vessel an absolute,
nondelegable duty to provide a seaworthy vessel. Harbin v. Interlake S.S.
Co, 570 F.2d 99, 103 (6th Cir. 1978). Liberty moves for judgment as a
matter of law on plaintiff’s unseaworthiness claim for the reason that it is
not the vessel owner. Plaintiff concedes that it has no viable claim for
unseaworthiness against Liberty.
Judgment as a matter of law is granted in favor of Liberty on plaintiff’s
unseaworthiness claim.

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D.

Punitive Damages
1.

Maintenance and Cure

As a general rule, damages recoverable under the Jones Act or
general maritime doctrine of unseaworthiness are limited to pecuniary
losses only. See Miles v. Apex Marine Corp., 489 U.S. 19 (1990). Almost
thirty years after deciding Miles, the Supreme Court recognized an
exception to the general rule and permitted the recovery of punitive
damages for the willful failure to provide adequate maintenance and cure
benefits under general maritime law. Atlantic Sounding Co., Inc. v.
Townsend, 557 U.S. 404 (2009). The Townsend Court recognized that
Miles dealt with a wrongful death action, and that Congress chose to limit
the damages available for wrongful death actions under two statutes: the
Jones Act and the Death on the High Seas Act. In differentiating
maintenance and cure benefits from wrongful death in the maritime context,
the Townsend Court pointed out that the only reason a general federal
cause of action for wrongful death on the high seas and in territorial waters
existed was because of congressional action.
As a result, to determine the remedies available under the
common-law wrongful-death action, “an admiralty court should
look primarily to these legislative enactments for policy
guidance.” Miles, 498 U.S. at 27, 111 S.Ct. 317. It would have
been illegitimate to create common-law remedies that
exceeded those remedies statutorily available under the Jones
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Act and DOHSA. See id., at 36, 111 S.Ct. 317 (“We will not
create, under our admiralty powers, a remedy ... that goes well
beyond the limits of Congress' ordered system of recovery for
seamen's injury and death”).
Townsend, 557 U.S. at 420.
In holding that punitive damages are available for common-law claims
for maintenance and cure, Townsend started by observing that the Jones
Act created a statutory cause of action for negligence, but did not eliminate
pre-existing remedies available to seamen for the separate common-law
cause of action based on the right to maintenance and cure. 557 U.S. at
415. The Court recognized the relevant difference between the situation
presented in Miles, statutory wrongful death, and cases involving
maintenance and cure as being that “both the general maritime cause of
action (maintenance and cure) and the remedy (punitive damages) were
well established before the passage of the Jones Act.” Id. In addition, the
Jones Act does not address maintenance and cure or its remedy.
Therefore, it is possible to award punitive damages for common-law
maintenance and cure while adhering to the traditional understanding of
maritime actions and remedies, to which Congress has not directly spoken,
without violating the Jones Act. Id. at 420-21.
The Townsend Court concluded that punitive damages are available
for the “willful or wanton failure to comply with the duty to pay maintenance
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and cure.” Id. at 422. “Maintenance and cure is designed to provide a
seaman with food and lodging when he becomes sick or injured in the
ship’s service; and it extends during the period when he is incapacitated to
do a seaman’s work and continues until he reaches maximum medical
recovery.” Vaughan v. Atkinson, 369 U.S. 527, 531 (1962). The employer
has an affirmative duty to promptly investigate any claim for maintenance
and cure and resolve any doubts as to entitlement in favor of the seaman,
promptly paying any amounts due. See, e.g., American Seafoods Co. v.
Nowak, 2002 WL 31262105 (W.D. Wa. 2002). General maritime law
provides recovery for the delayed or improper provision of maintenance
and cure. Townsend, 557 U.S. at 418.
In this case, plaintiff concedes that defendants eventually provided a
proper amount of maintenance, but argues he is entitled to punitive
damages because they wilfully and egregiously delayed making such
payments. In support, plaintiff points out that when he told defendants that
$8 a day was insufficient, they said that they were not able to pay him more
unless he signed a Claims Arbitration Agreement, acknowledging that $8 a
day was all defendants were required to pay and waiving his right to a jury
trial.

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Defendants respond that plaintiff is not entitled to maintenance in the
first place, let alone to punitive damages, because he resided with his
father and did not incur any living expenses. The cases cited by
defendants in support of this proposition involve plaintiffs who were entitled
to free room, board and medical attention at merchant marine hospitals, but
decided to live with family and seek maintenance payments instead. See
Johnson v. United States, 333 U.S. 46, 50 (1948). Merchant marine
hospitals no longer exist, so these cases are no longer good law for the
proposition cited by defendants.
Plaintiff is a 52 year old adult who claims he was forced to live with
his father out of economic necessity. Plaintiff admits that he did not pay
rent or utilities, but contends he had an agreement with his father to
reimburse him for the support provided.
The court finds that there is an issue of fact whether defendants
acted in bad faith with regard to the delay in paying maintenance benefits.
Similarly, there is an issue of fact whether plaintiff had an arrangement with
his father to pay him back for living expenses when he was able to do so.
2.

Unseaworthiness

This court is bound by Sixth Circuit precedent which states that
punitive damages are not available in general maritime unseaworthiness

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actions. Miller v. American president Lines, Ltd., 989 F.2d 1450 (6th Cir.
1993).
E.

Conclusion

For the reasons discussed above, defendants’ motion for partial
judgment on the pleadings is denied as to punitive damages for
maintenance and cure and granted as to punitive damages for
unseaworthiness. Defendants’ motion for summary judgment on punitive
damages is denied because there is an issue of fact whether plaintiff
incurred living expenses for which he would be entitled to recover
maintenance benefits and whether defendants were willful in delaying their
payment of reasonable maintenance.
II.

Plaintiff’s Motion for Partial Summary Judgment on Affirmative
Defenses
Plaintiff submitted his First Discovery Requests, consisting of

Interrogatories, Requests for Production and Requests for Admission on
March 13, 2015. Included in the discovery was the request to admit if there
were no grounds for defendants’ affirmative defenses, or to provide
evidence in support. Defendants deferred, asking to wait until discovery
was complete. Plaintiff filed this motion for partial summary judgment on
the following affirmative defenses at the close of discovery.

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A. Comparative Negligence
Defendants stipulate to dismiss this affirmative defense.
B. Act of Third Party
In their response brief to the pending motion for partial summary
judgment, defendants assert for the first time that if plaintiff suffers from a
traumatic brain injury, as he claims, then plaintiff’s medical providers may
be responsible for failing to timely diagnose and properly treat said brain
injury. Plaintiff responds that raising the argument that he is the victim of
medical malpractice for the first time after discovery has closed is
prejudicial.
The court denies plaintiff’s motion for summary judgment on this
affirmative defense without prejudice. If plaintiff is claiming that defendants
have committed some form of discovery abuse, this ruling would not
preclude him from renewing the request as a stand-alone motion for the
court to consider. As it stands, however, the issue is too underdeveloped
to provide a conclusive ruling.
C. Failure to State a Claim
The court denies plaintiff’s motion for summary judgment on this
affirmative defense. This affirmative defense is the basis of defendants’
motion for judgment on the pleadings, which the court addresses above.

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D. Failure to Mitigate
At oral argument, plaintiff conceded that he should have been looking
for work earlier, at the time he reached maximum medical improvement in
2016. Plaintiff’s motion for summary judgment on this affirmative defense
is denied.
E. Prior Existing Medical Condition
Plaintiff’s medical records, as well as the opinions of medical experts,
include references to plaintiff’s prior medical conditions, including:
hypomania, attention deficit hyperactivity disorder, anxiety disorder, family
problems, recurrent otitis media externa, alcohol and tobacco abuse, and
chronic pain disorder due to unrelated emotional factors. Defendants
argue that a jury should be able to determine whether the plaintiff’s claimed
injuries and damages stem from the negligence of defendants or whether
they are the consequence of his preexisting medical conditions.
Defendants did not respond to any of plaintiff’s discovery requests
focused on the affirmative defense of prior medical conditions while
discovery was still open. Defendants also have not tied any alleged
preexisting medical condition to plaintiff’s injuries sustained on the vessel.
It is not clear if plaintiff is seeking summary judgment based on
discovery abuses under Rule 37, or on some other ground. The court will

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consider such a motion if properly framed and fully developed. As it
stands, plaintiff’s motion for partial summary judgment on this affirmative
defense is denied without prejudice.
F. Act of God
Defendants stipulate to dismiss this affirmative defense.
G. Unavoidable Accident
The Jones Act provides a seaman with a right of action against his
employer for personal injuries sustained in the course of employment as a
result of the employer’s negligence, but not due to an accident. There is
an issue of fact in this case whether plaintiff suffered injuries due to
defendants’ negligence, or whether it was an accident. With regard to
whether the jury should be given an unavoidable accident instruction, the
court can revisit the issue after it hears the evidence presented at trial.
Plaintiff’s motion is denied as to this affirmative defense.
H. Laches
Defendants stipulate to dismiss this affirmative defense.
I.

Statute of Limitations

Defendants stipulate to dismiss this affirmative defense.

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J. Defendants’ Motion to Bifurcate
Defendants move the court to bifurcate plaintiff’s punitive damages
claim for purposes of trial until he first establishes liability and entitlement to
compensatory damages. Defendant alleges that plaintiff’s punitive
damages claim will not be ripe unless a jury determines plaintiff was
entitled to maintenance. If so, then plaintiff must establish that defendants
willfully and wantonly disregarded their obligation to pay maintenance
benefits in order to be entitled to punitive damages.
Federal Rule of Civil Procedure 42(b) controls bifurcation, permitting
separate trials of one or more separate issues for convenience, to avoid
prejudice or to expedite and economize. The decision whether to try issues
separately is within the sound discretion of the trial court. In re Bendectin
Litigation, 857 F.2d 290, 307 (6th Cir. 1988).
Plaintiff argues that the fact and expert witnesses on both sides will
testify as to (1) the issue of liability, (2) the issues relating to the
defendants’ failure to investigate and timely pay reasonable maintenance,
and (3) whether defendants’ conduct rose to the level of culpability
warranting an award of punitive damages. Therefore, bifurcating the trial
would cause these witnesses to testify twice as to the same facts and
opinions, something Rule 42 seeks to avoid. Plaintiff is a private party who

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would be greatly inconvenienced by the extra time and expense required
for two trials. In addition, as a seaman, plaintiff is considered a ward of the
court in admiralty, and his interests should be zealously protected by the
court. Skowronek v. Am. Steamship Co., 505 F.3d 482, 491 (6th Cir. 2007).
Bifurcation would extend the length of the combined trials and cause
evidence and testimony to be repeated because the same facts and
opinions would be presented on the issue of whether defendants breached
their duties and on the issue of whether those breaches were egregious so
as to impose liability for punitive damages.
Defendants argue that if the jury hears evidence regarding punitive
damages during the liability phase of trial, it may become emotionally
inflamed and place either undue sympathy upon plaintiff or undue prejudice
against defendants. In addition, evidence of defendants’ financial
conditions or ability to pay will improperly shift the focus from the
evidentiary burden for each cause of action.
The court is not convinced that defendants’ concerns about inflaming
the jury is valid. On the other hand, the court does find that bifurcating the
issues for trial will lead to inconvenience and added expense for both the
parties and the court. For these reasons, defendants’ motion to bifurcate is
denied.

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IV. Defendants’ Objections to Order Granting Motion to Compel
On January 4, 2017, plaintiff filed a motion to compel answers to
discovery. Plaintiff sought production of (1) tax returns and other financial
information from American and Liberty, (2) age composition and retirement
information of all American and Liberty crew, both licensed officers and
unlicensed seamen, and (3) training modules and videos showing the use
of a fall protection device implemented as a subsequent remedial measure
after the incident that is the subject of this litigation. Defendants opposed
the motion. Judge Whalen held a hearing on January 26, 2017 and made
the following rulings:
(1)

Tax Returns and Financial Information. The Magistrate Judge
ordered production of all tax returns and financial information of
both American and Liberty Steamship Companies from 2011 to
the present.

(2)

Age Composition. The Magistrate Judge ordered production of
age composition and retirement ages for all American and Liberty
Steamship Company personnel, both licensed officers and
unlicensed seamen, with the exception of any personnel serving
as a captain.

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(3) Training Modules and Videos. The Magistrate Judge, while
recognizing that the information likely will be inadmissible at trial,
nevertheless ordered the production of this information.
Defendants object to the decision of the Magistrate Judge and request that
this court refuse to adopt the order and enter an order denying plaintiff’s
motion to compel.
With respect to nondispositive matters, this court reviews the
Magistrate Judge’s decisions for abuse of discretion. Fed. R. Civ. P. 72(a).
A.

Tax Returns and Financial Records

Defendants argue that plaintiff seeks tax returns and financial records
for its punitive damages claim, but defendants do not believe plaintiff has a
viable punitive damages claim. The court rules today that plaintiff can seek
punitive damages for its maintenance claim. The court overrules
defendants’ objections to the order granting the motion to compel as to tax
returns and financial records.
B.

Age Composition of Defendants’ Personnel

Plaintiff sought to compel information relating to the age composition
of all of American and Liberty personnel, including all licensed officers and
unlicensed crew members. Both defendants object to providing such
information because the request is overly broad and seeks information that

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is neither relevant nor likely to lead to the discovery of admissible evidence.
The Magistrate Judge acknowledged that the request was overly broad as
phrased, and wondered “what could reasonably be deemed relevant in
terms of showing positions or classifications that Mr. Knudson, without
resort to speculation, could have obtained.” (Hearing Transcript, p. 37).
Nevertheless, the Magistrate Judge ordered the production of such
information for all employees of both American and Liberty.
As plaintiff was not an American employee, the portion of the order
requiring production of this information relating to American is erroneous as
such information is immaterial to plaintiff’s case. There is no suggestion
that plaintiff was free to move between companies or had taken steps to
secure a position with American. The production of information relating to
American personnel is not relevant to the economic analysis of plaintiff’s
claimed wage loss.
Plaintiff’s credentials allowed him to sail aboard a Liberty vessel in an
entry-level position. He had no licensure allowing him to sail as an officer,
union or non-union, on any vessel. Plaintiff has not provided any evidence
that he was certified to serve as an able-bodied seaman. Therefore, any
claim by plaintiff that he would have attained a higher rank is speculative at
this point. Plaintiff is required to prove future wage loss with reasonable

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certainty. Defendants argue that the notion that plaintiff would have
advanced beyond his entry-level position is wishful thinking and
speculative, and therefore such a contention is inadmissible.
Plaintiff responds that he had a long career in commercial fishing
before leaving to take care of his mother during a long and final illness. He
then set out to continue his career as a seaman and found employment
with Liberty. Plaintiff contends he was advised when he was hired that his
employment provided opportunities for advancement. Because defendants
argue that plaintiff would not have advanced beyond an entry level seaman
for the remainder of his work life, plaintiff wants access to age composition
information to argue his theory of the case.
Defendants have produced some information, which plaintiff admits
addresses most of his needs in order to present his theory of the case. In
an effort to compromise, defendants state they are willing to produce the
age composition of entry-level (the same classification as plaintiff) and
able-bodied (the next highest classification than plaintiff) seamen for Liberty
only.
Plaintiff’s economist has requested that defendants provide the
subsequent wages and earnings of the similarly situated, entry level
employees of Liberty, as relevant to plaintiff’s lost future earnings. The

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court finds that this is a reasonable compromise for plaintiff to be able to
present his theory of the case without overburdening Liberty.
The court holds as follows:
1. The discovery at issue is limited to Liberty.
2. Age composition discovery is limited to entry-level and able-bodied
Liberty seamen.
3. Subsequent wage and earnings of similarly situated entry level
Liberty employees shall be produced.
C.

Training Modules and Videos

Plaintiff sought, and the Magistrate Judge ordered, production of
evidence of subsequent remedial measures adopted by American and
Liberty following the incident. Rule 407 of the Federal Rules of Evidence
makes inadmissible any evidence of subsequent remedial measures to
prove negligence, culpable conduct or a defect in a product or its design.
Plaintiff acknowledges this, but argues that the videos would be useful in
helping the jury understand the testimony of plaintiff’s safety expert in
explaining how a fall protection device could have been incorporated in the
rigging of the bosun’s chair. Rule 407 allows a court to admit evidence of
subsequent remedial measures “for another purpose, such as

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impeachment or – if disputed – proving ownership, control, or the feasibility
of precautionary measures.”
Specifically, plaintiff seeks information generated by defendants in
their investigation that led to changes to the rigging (this has apparently
already been provided), and videos depicting the use of a bosun’s chair
with a fall protection device. Again, plaintiff admits such evidence of
subsequent remedial measures is not admissible to prove liability or
culpability, but argues it is admissible to determine the cause of the
accident and to explain why the wrong type of line was used on the bosun’s
chair involved in this case. The video will illustrate how easily a fall
protection device could have been incorporated into the rigging of the
bosun’s chair without interfering with the essential function or efficiency of
the procedure. Plaintiff states that the video can be shown to the jury
without disclosing that the defendants actually made this change after the
incident. Plaintiff maintains that he should be given the information in
discovery and the court can ultimately determine whether it is admissible at
trial.
While admissibility for trial and discoverability are not the same thing,
the object of the discovery request must have some evidentiary value
before an order to compel disclosure of otherwise inadmissible material will

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issue. Kemper Ins. Cos. v. J.B. Hunt Logistics, Inc., 2003 WL 25672797
(N.D. Ga, June 17, 2003). Defendants told Magistrate Judge Whalen that
they admit incorporating a fall protection device into the rigging of the
bosun’s chair is feasible. The court agrees with Magistrate Judge Whalen
that the learning modules and videos would be useful to the plaintiff’s
expert for purposes of discovery, and overrules defendants’ objection in
this regard. The court reserves ruling on whether the modules and videos
are admissible at trial.
Dated: August 30, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 30, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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