In an important maritime law decision protecting seaman all over the county, the Supreme Court of the United States upheld the Louisiana verdict secured for an injured maritime worker. Attorney Blake R. David (lead counsel) and J. Derek Aswell of Broussard & David represented the plaintiff. Guidry v. Tanner Marine, 16-61 (La. App. 3rd Cir. 10/19/16), 206 So.3d 378, writ denied (La. 1/23/17) 209 So.3d 90; writ denied (U.S. 6/12/17) 2017 WL 1494663.

In Guidry v. Tanner Services, a St. Landry Parish trial court found Ernest Guidry to be a seaman under the Jones Act and awarded general and special damages of $3,885,911.69. A 16,000 pound vibrating hammer fell on Guidry causing the amputation of his four fingers, a crushed foot, herniated discs in his neck and back, concussion, depression, post-traumatic stress, and total and permanent disability. The verdict was upheld by the Louisiana Third Circuit Court of Appeal, the Supreme Court of Louisiana, and the Supreme Court of the United States — the final judgment with judicial interest totaled over $4,280,000.00.

Defendant, Tanner Services, LLC, was awarded a contract to construct a bulkhead in Grand Isle, Louisiana beginning in January 2012. The Defendant used three barges and two tugboats to move the equipment, supplies, and store materials, as well as to act as “floating docks” or “work stations” for a crane and preparatory welding. The project also used floating mats described as a large piece of wood similar to a “raft.” Guidry spent the majority of his time on the floating raft. Previously, Guidry had been strictly a land-based shop welder for Tanner. The trial court found that he was reassigned to do maritime work, and that this reassignment changed his status to a Jones Act seaman who can recover for his catastrophic losses from his at-fault employer. The court also found that the raft was an appurtenance to the crane barge.

Jerome Moroux of the law firm Broussard and David, recently obtained a settlement of over $3.2MM on behalf of an offshore worker who sustained  an injury while entering a vessel in Vermilion Parish. The incident was unwitnessed and occurred as the worker was crossing the gangway that was not properly secured on the vessel.

Initially, the worker believed he had sustained only a twisted ankle. As he continued working offshore, however, plaintiff’s pain continued to worsen. He was ultimately diagnosed with CRPS in his right ankle and received a spinal cord stimulator in his low back for right ankle pain. Plaintiff also treated for depression following his injury.

The case was defended by ABC Boats and Doe’s employer, which denied liability and the extent of damages claimed. As to liability, defendants asserted that plaintiff misjudged the step from the gangway to the deck; defendants focused on the fact that plaintiff had provided multiple accounts of the accident to his various doctors and company representatives. Additionally, ABC Boats’s Captain testified that he observed the gangway one hour before the accident and it was properly secured; also, three passengers boarded the vessel in the hour before plaintiff and had no problems with the gangway. Concerning damages, defendants questioned the diagnosis of CRPS and denied that plaintiff’s psychological trauma were in any way related to the accident.

A slip and fall accident in Las Vegas, Nevada resulted in an eleven-day trial where the jury returned a verdict of more than $16 million to a plaintiff who fell in a Lowe’s Home Center, fracturing her skull and causing a hemorrhage in the front of her brain. Because of her injuries, she has suffered from multiple long-term medical issues such as chronic neck pain, headaches, anxiety and depression, issues with balance, and she has forever lost her senses of taste and smell.

On the date of the fall, the plaintiff, Kelly Hendrickson, was walking through a Lowe’s garden department when she was purchasing plants for her new home. At the same time, the watering system for the plants in the store created puddles in the areas where customers walked. Although a warning cone was placed within the puddle itself, there were no warnings in the surrounding areas of the puddle and the cone was not visible to Hendrickson when she turned the corner into the aisle where she fell.

After plaintiff’s fall, three different Lowe’s employees passed her without offering to help. Another customer and her daughter came to her aid. As Hendrickson waited for further help to arrive, she asked for a bottle of water, which the cashier required her to purchase. Help arrived and she was taken to the hospital. Upon examination in the emergency room, medical professionals discovered her injuries, including a skull fracture and subarachnoid hemorrhage.

An interesting case recently arose out of the Northern District of California. A ferry boat captain was found partially responsible for a collision in which he was using his cell phone in the minutes before his boat wrecked into a speedboat on the San Francisco Bay.

In February of 2013, Harry Holzhauer and David Rhoades were traveling by speedboat in the San Francisco Bay when a ferry crashed into their boat. The driver, Holzhauer, was killed in the collision and Rhoades, who owned the boat, was seriously injured. The widows of Holzhauer and Rhoades both filed claims against the ferry captain and the ferry owner, alleging the captain negligently used his cell phone immediately before the accident occurred.  At the trial, Plaintiffs presented evidence that showed that the ferry made a course and speed change about two minutes before the collision and that the captain of the ferry made a two-minute cell phone call at 4:07 pm, just before the 4:09 pm collision.

After hearing the evidence, the jury returned a verdict in favor of the plaintiffs in the amount of $5,276,306, broken down as $3,729,559 to Rhoades and $1,546,747 to Holzhauer. Further, the jury found the ferry Captain to be 30% at fault and Holtzhauer 70% at fault, reducing Holtzhauer’s award to $464,024.00.

In the District Court of Harris County, Texas, a jury awarded over $40 million to owners of oil production facilities nearly 12 years after Hurricane Rita struck the Gulf Coast. The oil company plaintiff hired experienced trial lawyers to bring their claim before the civil justice system and hold their insurer accountable for the damages suffered.

In 2005, Prime Natural Resource owned oil and gas drilling platforms off of the coast of Morgan City. These platforms were insured by underwriters at Lloyd’s, London. Hurricane Rita struck Prime’s wells in September 2005 causing over $20 million in damages, including debris removal and restoration. Despite being aware of the damages for over 10 years, the insurance company repeatedly claimed its policy did not cover this particular damage. The policy covering the oil and gas drilling platform was a Wellsure policy, one often used in the energy industry. The Underwriters admitted that they insured the platform, but refused to pay for any individual parts of the well damaged by the Hurricane.

Both the trial court and court of appeals refused to look beyond the language of the insurance contract granting summary judgment in favor of Lloyd’s. The court’s looked to the intent of the parties in interpreting the policy. On appeal Prime brought four causes of action in front of the District Court: (1) breach of contract, (2) unfair or deceptive acts under the insurance code, (3) failure to promptly pay claims, and (4) breach of common law duty of good faith. After a six-week trial, the jury awarded $27.3 million in punitive damages, while also finding the insurers both breached a contract, as well as, violated the state insurance code. In addition to the punitive damages, Prime was awarded $10.9 million in bad faith, $1.8 million in actual damages, and $1.6 million in legal fees.

Lafayette Consolidated Government, in partnership with Bike Lafayette and Broussard & David, LLC, will host the second annual Bicycle Safety Festival on Saturday, May 20 at Parc Sans Souci from 9 a.m. until noon.

Bicyclists of all ages are invited to participate in the free event which will feature bicycle safety instruction, bike helmet fitting, and bicycle inspections.

“The aim of this event is to help cyclists and motorists become more knowledgeable about bicycle safety and the rules of the road,” said Lafayette Mayor-President Joel Robideaux. “As Lafayette embraces a more bicycle-oriented mindset, bicycle awareness is becoming even more essential. Through this approach, we can make the roads safer for all users.”

A recent Fifth Circuit per curiam opinion proves to be a lesson for maritime and admiralty attorneys in how to preserve issues on appeal, particularly in Jones Act jury trials.

In 2014, Plaintiff Richard Bosarge applied for employment with Cheramie Marine, L.L.C. and was hired as a relief captain. While on duty, Mr. Bosarge sustained injuries to his back when he was tossed out of his bunk when his vessel hit a large wave. Cheramie responded by arguing that the waves were not violent and alleging that Mr. Bosarge never reported any injuries to his superiors, other than some seasickness.

Mr Bosarge sued his employer under the Jones Act to recover for his back injuries. During his pre-employment physical examination, Mr. Bosarge denied having any prior back pain or injury, although he had sought medical care for back pain in the past. At trial, Defendant’s medical expert was able to compare pre-injury and post-injury MRIs of Mr. Bosarge’s back, and testified that the post-injury MRI showed less injury than the pre-injury MRI. The jury returned a zero verdict and Plaintiff appealed.

More manufacturing defects with replacements airbags, giving rise to products liability claims, have required an automotive replacement parts corporation to issue yet another recall, affecting as many as 230,000 vehicles. The vehicles affected by BMW AG’s most recent recall had replacement airbags manufactured by Petri, a German company owned by Takata Corp., installed after a crash. The inflators used, called the Takata PSDI-4 inflators, can explode in a crash—even one at low speed—and spray those occupying the vehicle with metal shards. These regulators are filled with ammonium nitrate, an explosive chemical with power similar to dynamite. If the chemical degrades over time, the airbags can deploy with so much force that the metal casings are destroyed, sending the metal shards into the unsuspecting vehicle occupants. Around 14,600 of these inflators were shipped to the U.S. between 2002 and 2015 for replacement use. This recall is one of the largest recalls in motor vehicle history, due in part to the 17 deaths these vehicles have caused worldwide and brought to the forefront by products liability lawyers. In the U.S. alone, these airbags have been linked to 11 deaths and 180 injures. Several vehicle drivers and passengers have sued Takata claiming injuries from the metal shrapnel. The Center for Auto Safety’s executive director, Michael Brooks, has said the National Highway Traffic Safety Administration (“NHTSA”) should investigate whether these airbags were used by other vehicle manufacturers. This is needed, as the airbags may have been used by a dozen or more car manufacturers, including Honda, GM, and Volkswagen. BMW already has vehicles with defective airbags under recall, bringing the total to over 1.5 million cars. The car models affected by this most recent recall are some 2001-2002 X5 SUVs, 2000-2002 3 Series, and 2001-2005 5 Series models.

Takata Corp. has also recently entered into an agreement to plead guilty in an investigation by the DOJ concerning the exploding airbags. This settlement comes with a $1 billion payment. Of the $1 billion payment, $25 million will go to the U.S. and $975 million will be paid as restitution to carmakers and those injured by the airbags. Specifically, Takata’s settlement means it will admit to misleading industry regulators, car manufacturers, and ultimately the consumers about the safety of the replacement airbags. This settlement also means Takata will be independently monitored for compliance for the next three years. The recall tied to the airbags has already plagued the corporation and is expected to surpass 100 million. Just two years ago, the corporation signed an agreement to pay a $70 million fine to U.S. regulators because of selective, inaccurate, and incomplete information provided concerning the airbag regulators. The NHTSA has said that this fine could rise to $200 million if the corporation does not finish the recalls within three years. This process will be long and arduous for Takata, as there are approximately 46 million recalled airbag inflators in 29 million vehicles in the U.S. alone. This number could rise over the next three years, affecting as many as 42 million consumer vehicles and 69 million inflators.

Volkswagen is experiencing similar recall problems, issuing a recall affecting hundreds of thousands of Audi models. These recalls stem from two airbag defects and overheating coolant pumps. One of the airbag recalls affects approximately 234,054 Audi Q5 models from 2011 to 2017. This recall stems from a sunroof drainage issue which can corrode the airbag’s inflator canister causing it to rupture and spray the vehicle occupants with metal shards. The second airbag recall affects 5,901 Audi and Volkswagen cars from 2017 and 2018 Audi A4, A6, A7, Volkswagen Golf, e-Golf, and Tiguan models. These airbags may not deploy properly. These models may also experience issues with the seat-belt pretensioners, the device designed to pull a seat belt tight in a crash, not working properly.

Blake R. David of the maritime law firm Broussard & David, LLC obtained a jury verdict of $3,885,911.69 on behalf of a welder who sustained injuries when a vibrating hammer fell and struck him. The verdict, awarding general damages and pre-judgment interest was affirmed by the Louisiana Third Circuit Court of Appeal. On January 23, 2017, the Louisiana Supreme Court denied the application for writ of certiorari on general damages and seaman status – allowing the award to stand.

Plaintiff Ernest L. Guidry, was a welder for Defendant Tanner Services, LLC for approximately two years before he was seriously injured. The defendant was awarded a contract to build a bulkhead on Grand Isle. Tanner had both land division and maritime division crews. Plaintiff had previously worked for Tanner as a shop welder in Eunice, Louisiana, but was reassigned to the Tanner Marine Division before his injury. The project utilized three barges and two tugboats on which a floating mat and other supplies were housed. After the reassignment, Plaintiff spent his working time on the water performing preparatory work for the project, which included welding connectors, welding sheet piles, and cutting holes in the sheet piles. Plaintiff also attended job safety analysis meetings each morning on vessels with the marine division crew. Plaintiff spent approximately 90% of his time working on the water, particularly the floating mat. Plaintiff was severely injured when the vibrating hammer used to drive in piles fell and struck him. The strike caused Plaintiff to fall into the water and caused multiple injuries, including a crushed foot, a concussion, herniated discs, depression, anxiety, the amputation of four fingers, and total and permanent disability.

Defendant contended Plaintiff was not entitled to seaman status under the Jones Act, barring recovery under that statute for the serious and permanent injuries Plaintiff sustained. However, both the trial court and Louisiana Third Circuit Court of Appeal disagreed. Both courts found Plaintiff contributed to the vessel’s function and accomplishment of the vessel’s mission and the plaintiff’s connection to the vessel fleet was substantial in duration and nature because of the amount of time he spent on the floating mat and the work he performed on the mat. These facts entitled Plaintiff to seaman status under the Jones Act, making that statute an avenue of recovery for the severe injuries Plaintiff received. Additionally, the Third Circuit Court of Appeal found that the award of general damages and prejudgment interest on the damages was not an abuse of discretion.

BATON ROUGE  Today, Gov. John Bel Edwards announced his appointments to the Board of Regents.

“Our institutions of higher education continue to face financial challenges that make the work of the Board of Regents more critical than ever as we continue our efforts to stabilize the budget and provide more predictable funding for our colleges and universities,” said Gov. Edwards. “The appointees I have named to the board bring an array of professional and educational expertise from higher education institutions across Louisiana. I am looking forward to working with them to build a brighter future for Louisiana’s students.”

The following appointments will be effective on January 1, 2017: