Mullinex et al v. Air & Liquid Systems Corporation et al
Filing
544
MEMORANDUM OPINION re 481 Motion to Dismiss Plaintiff's Claim for Survival Damages. Signed by District Judge Raymond A. Jackson on 6/10/22. (mrees, )
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 1 of 10 PageID# 45019
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division
PATRICIA E. MULLINEX,
Individually and as Executor of the
Estate of Herbert H. Mullinex, Jr.,
Plaintiff,
v.
Case No. 4:18-cv-00033-RAJ-DEM
JOHN CRANE INC.,
Defendant.
MEMORANDUM OPINION
Before the Court is John Crane, Inc.’s (“JCI” or “Defendant”) Motion to Dismiss
Plaintiff’s Claim for Survival Damages. Mot. Dismiss Pl.’s Claim for Survival Damages (“Mot.
Dismiss”), ECF No. 481. Patricia E. Mullinex (“Plaintiff”) responded, see Pl.’s Opp. Mot.
Dismiss (“Pl.’s Opp.”), ECF No. 494, and JCI replied. Def.’s Reply, ECF No. 500. The Court
has reviewed the parties’ pleadings, and this matter is ripe for adjudication. For the reasons
stated below, and in accordance with the Court’s Order on May 23, 2022, see Order, ECF No.
538, JCI’s Motion to Dismiss is GRANTED. The Court FINDS that Plaintiff is not entitled to
recover Mr. Mullinex’s pre-death pain and suffering or medical expenses.
I.
FACTUAL AND PROCEDURAL HISTORY
Herbert H. Mullinex, Jr. and Patricia Mullinex originally filed this action in Virginia state
court as a personal injury negligence claim based on asbestos exposure aboard Navy ships on
November 4, 2016. Compl., ECF No. 1 at Ex. 1. The action was removed to this Court on March
23, 2018. Notice of Removal, ECF No. 1. Unfortunately, Mr. Mullinex died on November 11,
2021. Suggestion of Death, ECF No. 436. On January 12, 2022, Plaintiff filed a Second
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 2 of 10 PageID# 45020
Amended Complaint (“SAC”), substituting Mrs. Mullinex as executrix of Mr. Mullinex’s estate.
Second Am. Compl., ECF No. 450. In response to the SAC, Defendant moved for leave to file a
motion in limine to exclude Plaintiff’s evidence of survival damages on January 21, 2022. Mot.
Leave File Mot. in Limine, ECF Nos. 458, 459. On March 24, 2022, however, Plaintiff filed a
Third Amended Complaint (“TAC”), seeking recovery for the wrongful death of Herbert H.
Mullinex, Jr. under general maritime law. Third Am. Compl., ECF No. 478. Defendant then
withdrew its motion for leave. Notice of Mot. Withdraw, ECF No. 483.
In the TAC, Plaintiff claims that Defendant, a manufacturer of gaskets and gasket
packaging, failed to warn Plaintiff about the asbestos risk associated with using their products.
Id. Plaintiff requests survival damages for Mr. Mullinex’s pain and suffering as well as his
medical expenses.1 Third Am. Compl. at 15–18. Defendant filed the instant Motion to Dismiss
on April 6, 2022, contending that, in accordance with the Death on the High Seas Act
(“DOHSA”), 46 U.S.C. §§ 30301–30308, Plaintiff is not entitled to survival damages, including
Mr. Mullinex’s pain and suffering and medical expenses. Mot. Dismiss at 1; Def.’s Mem. Supp.
Mot. Dismiss (“Def.’s Mem. Supp.”), ECF No. 482 at 1–2. Plaintiff, on the other hand, alleges
that there is a survival remedy for seamen like Mr. Mullinex under general maritime law in
accordance with the Jones Act, 46 U.S.C. §§ 30101–30106. Pl.’s Opp. at 1–5.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of actions that fail to
state a claim upon which relief can be granted. For the purposes of a Rule 12(b)(6) motion,
courts may only rely upon the complaint’s allegations and those documents attached as exhibits
1
Plaintiff also requests punitive damages and other non-pecuniary damages. Third Am. Compl. at 15–18. The
Court need not address those damages here because this Court adopted and affirmed United States Magistrate Judge
Douglas E. Miller’s Report and Recommendation, which denied those damages. See Order, ECF No. 533; Judge
Miller’s Rep. and Rec., ECF No. 351.
2
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 3 of 10 PageID# 45021
or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31
(4th Cir. 1985). Courts will favorably construe the allegations of the complainant and assume
that the facts alleged in the complaint are true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
However, a court “need not accept the legal conclusions drawn from the facts,” nor “accept as
true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc., v.
J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
A complaint need not contain “detailed factual allegations” in order to survive a motion
to dismiss, but the complaint must incorporate “enough facts to state a belief that is plausible on
its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). This plausibility standard does not equate to a probability
requirement, but it entails more than a mere possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50 (2009). Accordingly, the plausibility standard
requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff
has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949, and Twombly, 550 U.S. at 557). To
achieve factual plausibility, plaintiffs must allege more than “naked assertions . . . without some
further factual enhancement.” Twombly, 550 U.S. at 557. Otherwise, the complaint will “stop[ ]
short of the line between possibility and plausibility of entitlement to relief.” Id.
III.
A.
ANALYSIS
The Batterton Standard
In Batterton, the United States Supreme Court created a three-part test for evaluating
whether damages are available under maritime law. See Dutra Grp. v. Batterton, 139 S. Ct. 2275,
2283 (2019) (establishing the standard in accordance with the Supreme Court’s decisions in
3
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 4 of 10 PageID# 45022
Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317 (1990) and Atl. Sounding Co. v.
Townsend, 557 U.S. 404, 129 S. Ct. 2561 (2009)). Under this test, damages are available only if
at least one of the following is met: (1) the damages “have traditionally been awarded” for the
instant claim; (2) “conformity with parallel statutory schemes would require such damages;” and
(3) the court is “compelled on policy grounds” to allow the damages. Id. The test is specific to a
plaintiff’s cause of action. See id. at 2278, 2283 (assessing each step relative to plaintiff’s
unseaworthiness claim).
This standard is indicative of a major shift in the Supreme Court’s approach to
developing general maritime law, especially as it pertains to seamen. Where the courts once
“used [their] power to protect seamen from injury,” id. at 2279, courts now give “deference to
the policies expressed in the statutes governing maritime law.” Id. at 2287. As the Supreme
Court explained:
“Batterton points to the maritime doctrine that encourages special
solicitude for the welfare of seamen. But that doctrine has its roots
in the paternalistic approach taken toward mariners by 19th
century courts . . . . The doctrine has never been a commandment
that maritime law must favor seamen whenever possible. Indeed,
the doctrine’s apex coincided with many of the harsh common-law
limitations on recovery that were not set aside until the passage of
the Jones Act. And, while sailors today face hardships not
encountered by those who work on land, neither are they as
isolated nor as dependent on the master as their predecessors from
the age of sail. In light of these changes and of the roles now
played by the Judiciary and the political branches in protecting
sailors, the special solicitude to sailors has only a small role to play
in contemporary maritime law.”
Id. at 2287 (internal citations omitted). The Supreme Court’s view of its role in Batterton is
consistent with its other more recent decisions on remedies for seamen in maritime actions. See
Calhoun v. Yamaha Motor Corp., U.S.A., 40 F.3d 622, 636 (3d Cir. 1994) (“One trend that
cannot be ignored is that the Court seems to be cutting back on plaintiffs’ rights in maritime
4
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 5 of 10 PageID# 45023
actions . . . . Higginbotham, Tallentire, and Miles . . . show a tendency on the part of the Court
during the last two decades to reverse its policy of favoring seamen plaintiffs.”), aff’d Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199 (1996). For the reasons below, Plaintiff is not entitled to
Mr. Mullinex’s pre-death pain and suffering or medical expenses under Batterton.2
i.
There is no clear historical pattern of awarding survival damages in
general maritime negligence or wrongful death actions.
Under the first prong, there must be a “clear historical pattern” of awarding survival
damages, including pre-death pain and suffering and medical expenses, in negligence actions
during the “formative years” of “traditional maritime law.” See Batterton, 139 S. Ct. at 2283 n.6,
2284; Calhoun, 40 F.3d at 637 (finding that survival damages include “the decedent’s pain and
suffering” and “medical expenses”). The Supreme Court’s holding in Miles is dispositive on this
issue. The Court held that “[u]nder traditional maritime law, as under common law, there is no
right of survival; a seaman’s personal cause of action does not survive the seaman’s death.” 498
U.S. at 33. Since then, despite acknowledging a more recent trend of decisions among federal
circuit courts in favor of awarding survival damages to seamen based on the Jones Act, the Court
has declined to change the rule under traditional maritime law. See id. at 34; Yamaha Motor
Corp., 516 U.S. at 210 n.7; Dooley v. Korean Air Lines Co., 524 U.S. 116, 124 n.2 (1998).
Accordingly, because there is no clear historical pattern of awarding survival damages under
2
The parties agreed earlier in this case that Batterton controls the Court’s analysis of damages in
Plaintiff’s general maritime action. See Def.’s Mot. Exclude Damages Evid., ECF No. 215 at 4; Pl.’s Opp.
Def.’s Mot. Exclude Damages Evid., ECF No. 263 at 1, 17. On the instant Motion, however, Plaintiff
contends that we should reject the standard established in Batterton in favor of the reasoning employed by
the Virginia Supreme Court in John Crane, Inc. v. Hardick, 732 S.E.2d 1 (Va. 2012), a case that pre-dates
Batterton. See Pl.’s Opp. Mot. Dismiss at 4 (“[B]ecause Hardick II dealt with the exact issue that is before
the Court in this case, Hardick II is more instructive on this issue than Batterton.”). The Court rejects
Plaintiff’s argument and continues to follow Batterton as controlling precedent on determining what
damages are available under maritime law.
5
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 6 of 10 PageID# 45024
traditional maritime law, Plaintiff is not entitled to survival damages, including pre-death pain
and suffering and medical expenses, under Batterton’s first prong.
ii.
Parallel federal statutory schemes, namely the Jones Act and Death
on the High Seas Act (“DOHSA”), do not require awarding survival
damages for pre-death pain and suffering or medical expenses in
maritime wrongful death actions.
Even where there is no clear historical pattern of awarding damages for a particular
claim, Batterton’s second prong allows courts to adopt damages where parallel statutory schemes
require it. 139 S. Ct. at 2283. Plaintiff argues that the applicable parallel statutory scheme here is
the Jones Act because Plaintiff is a “seaman.” Pl.’s Opp. at 19. Defendant argues that DOHSA is
the applicable parallel statutory scheme because the maritime wrongful death remedy adopted by
the Supreme Court in Moragne v. States Marine Lines, 398 U.S. 375 (1970) was based primarily
on DOHSA, not the Jones Act. Mot. Dismiss at 8–11. The Court rejects both parties’ arguments
in-part and finds that it must look to both statutory schemes to determine whether particular
survival remedies are required for Plaintiff’s claim.
Both statutory schemes are relevant to Plaintiff’s claim because she alleges that Mr.
Mullinex was a seaman who died due to the negligence of a third-party manufacturer. While the
Jones Act governs remedies for seamen in negligence claims against their employers, 45 U.S.C.
§ 51, DOHSA governs wrongful death claims on the high seas (more than three miles off the
shore of the United States) with no class limitations regarding who can seek recovery or be sued
under the statute. 46 U.S.C. § 30302. Both parties acknowledged earlier in the case that, in the
event of Mr. Mullinex’s death, DOHSA would become relevant to the Court’s analysis under
Batterton. See Pl.’s Obj. Judge Miller’s Rep. and Rec. (“Pl.’s Obj.”), ECF No. 366 at 2 n.3
(“DOHSA does not apply here because Mr. Mullinex has not passed away, and thus this is not a
wrongful death case, at least not yet.”); Def.’s Resp. Pl.’s Obj. Judge Miller’s Rep. and Recs.,
6
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 7 of 10 PageID# 45025
ECF No. 395 at 10 n.4 (“As Plaintiffs impliedly acknowledge in their brief, DOHSA would
factor into the recoverable damages in a general maritime law wrongful death case.”) (citing Pl.’s
Obj. at 11). Furthermore, the Supreme Court has instructed that “DOHSA should be the courts’
primary guide as they refine the non-statutory death remedy.” Mobil Oil Corp. v. Higginbotham,
436 U.S. 618, 624 (1978).
There is no controlling, post-Batterton precedent, however, that supports analyzing one
statutory scheme over another, especially when each statute speaks to an aspect of a plaintiff’s
claim that the other does not. In fact, instances in which the Supreme Court decided whether to
adopt a claim or remedy relevant to Plaintiff’s claim here, the Supreme Court evaluated all
parallel statutory schemes, especially if there was no historical basis for the claim or remedy
under traditional maritime law. See Moragne, 398 U.S. 375 (holding that the Jones Act and
DOHSA support a wrongful death claim under general maritime law); Miles, 498 U.S. 19
(holding that recovery for loss of society in general maritime law is not supported by the Jones
Act or DOHSA). Therefore, in this case, the Court must evaluate whether survival damages such
as pre-death pain and suffering and medical expenses are required in wrongful death claims
across all parallel statutory schemes for seamen like Mr. Mullinex.
Parallel statutory schemes do not require survival damages for wrongful death claims by
seaman against non-employers like Defendant. Congress has not taken a consistent approach to
awarding survival damages in maritime wrongful death claims. While the Jones Act permits
survival damages for pre-death pain and suffering and medical expenses in negligence claims by
seamen against their employers,3 DOHSA does not allow such damages. Dooley v. Korean Air
Lines Co., 524 U.S. 116, 118 (1998) (DOHSA “allows certain relatives of the decedent to sue for
their pecuniary losses[] but does not authorize recovery for the decedent’s pre-death pain and
3
See Batterton, 139 S. Ct. at 2284; St. Louis, I. M. & S. R. Co. v. Craft, 237 U.S. 648, 657–61.
7
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 8 of 10 PageID# 45026
suffering.”) (emphasis added). For these reasons, the Court finds that parallel statutory schemes
do not require recovery for pre-death pain and suffering or medical expenses in maritime
wrongful death actions by seamen against non-employer manufacturers.
iii.
Policy considerations do not compel recognition of survival damages
for pre-death pain and suffering or medical expenses in maritime
wrongful death actions.
“In contemporary maritime law, [the] overriding objective is to pursue the policy
expressed in congressional enactments.” Batterton, 139 S. Ct. at 2285–86. Batterton’s third
prong imposes a higher standard that courts must meet before adopting a new or statutory
remedy than had previously existed. It requires courts to analyze congressional enactments more
carefully to assess whether Congress has taken a legislative approach that is consistent enough to
compel courts’ adherence.
The inconsistent legislative approach Congress has taken to awarding survival remedies
in maritime wrongful death actions is contrary to the “wholesale and unanimous policy judgment
that prompted the [Supreme] Court to create a new [wrongful death] cause of action in Moragne”
and other decisions by the Court regarding the remedies available under general maritime law
based on DOHSA and the Jones Act. See Miles, 498 U.S. at 35 (citing Moragne, 398 U.S. at 388,
389) (internal quotations omitted); supra at 6. If anything, Congress has demonstrated a policy of
permitting survival damages when enforcing maritime employer liability. Moragne, 398 U.S. at
407 (“[T]he beneficiary provisions of the Jones Act are applicable only to a specific class of
actions—claims by seamen against their employers—based on violations of the special standard
of negligence that has been imposed under the Federal Employers’ Liability Act.”). Since
DOHSA does not permit survival damages in maritime wrongful death claims in virtually all
other circumstances, however, this Court cannot confidently import Congress’ approach in the
8
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 9 of 10 PageID# 45027
employment context to wrongful death claims against non-employer defendants, even if the
plaintiff is a “seaman.” See Miles, 498 U.S. at 36 (“Maritime tort law is now dominated by
federal statute, and we are not free to expand remedies at will simply because it might work to
the benefit of seamen and those dependent upon them.”); Dennis v. Air & Liquid Sys. Corp., No.
CV 19-9343-GW-KSx, 2021 U.S. Dist. LEXIS 182133, at *77 (C.D. Cal. Mar. 24, 2021) (“The
identity of the defendant should matter. In determining the remedies for a maritime law cause of
action, courts ‘must consider both the heritage of the cause of action in the common law and its
place in the modern statutory framework.’”) (quoting Batterton, 139 S. Ct. at 2278).
Moreover, Congress enacted both the Jones Act and DOHSA in 1920, only a few months
apart. Id. at 23–24. Thus, Congress was well aware of the remedy limitations it was establishing
in each statute. If Congress wanted to permit survival damages for seamen in all maritime
wrongful death actions—not just in claims against employers—it could have. Similarly, if
Congress wanted to permit survival damages in all maritime wrongful death actions—regardless
of a plaintiff’s classification—it could have. See e.g. 46 U.S.C. § 30307 (amending DOHSA in
2006 to permit recovery of non-pecuniary damages for deaths resulting from commercial
aviation accidents more than 12 miles from the U.S. shore). Instead, Congress has instituted very
narrow remedies for specific types of maritime wrongful death actions based on the
circumstances surrounding the claims. See Miles, 498 U.S. at 21 (“Congress, in the exercise of its
legislative powers, is free to say this much and no more.”).
Finally, general maritime law is not a plaintiff’s only source for the same or similar
recovery Plaintiff seeks in the instant matter. Plaintiff could have pursued a wrongful death claim
against Defendant under Virginia law. See Calhoun, 516 U.S. 199, 201 (1996) (holding that state
remedies have not been displaced by the recognized federal maritime wrongful-death action).
9
Case 4:18-cv-00033-RAJ-DEM Document 544 Filed 06/10/22 Page 10 of 10 PageID# 45028
For these reasons, the Court finds that policy considerations under Batterton’s third prong do not
compel survival damages for pre-death pain and suffering or medical expenses under general
maritime law.
IV.
CONCLUSION
For these reasons, Plaintiff has failed to state a viable survival claim for Mr. Mullinex’s
pain and suffering and medical expenses. If Defendant is found liable for Mr. Mullinex’s death,
Plaintiff is only entitled to the pecuniary damages resulting from Mr. Mullinex’s death.
Accordingly, Defendant’s Motion to Dismiss is GRANTED.
The Clerk is DIRECTED to send a copy of this Memorandum Opinion to the parties and
all counsel of record.
IT IS SO ORDERED.
Digitally signed by
Raymond Jackson
Date: 2022.06.10
12:54:54 -04'00'
Newport News, Virginia
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?