Green v. Seariver Maritime, Inc. , 248 F. App'x 517 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 07-40078 September 19, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
EMILE GREEN
Plaintiff-Appellee
v.
SEARIVER MARITIME, INC.
Defendant-Appellant
Appeal from the United States District court for the Southern District of
Texas, Galveston Division
USDC No. 3:05-CV-423
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
SeaRiver Maritime, the defendant-appellant, now appeals the district
court’s adverse findings of fact and calculation of damages We AFFIRM the
district court’s judgment, but VACATE the district court’s damages calculations.
FACTS
In 1996, Emile Green started working for SeaRiver as a deck-
hand/maintenance seaman aboard SeaRiver’s tankers. In 2001, Green
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-40078
transferred to work on SeaRiver’s harbor tugs, which included docking and other
manual labor. Four to six months before the injury, he was instructed to moor
using a single heavier line (instead of previously using three lighter lines). He
was not provided substantive instructions on how to avoid injury for single line
moorings. In one incident, he was instructed to throw an older mooring line in
an upward direction; the mooring line was probably wet and thus heavier than
normal. After throwing the line, his shoulder started to hurt. His shoulder
continued to hurt and he visited physicians who diagnosed him with
degenerative shoulder arthritis. In August, 2005, he came under the care of Dr.
Zoran Cupic, a Houston orthopedist, who operated on him and concluded that
the toss was the primary cause of his shoulder pain. Green filed a maritime
action against SeaRiver in the United States District Court for the Southern
District of Texas and alleged negligence under the Jones Act, 46 U.S.C. § 688and unseaworthiness; he sought damages and maintenance and cure. SeaRiver
contests liability for damages, but paid maintenance and cure. During the
bench trial, after the plaintiff closed his case, SeaRiver moved for judgment on
partial findings under Rule 52(c) but its motion was denied. At the conclusion
of the trial, the trial court entered its Findings of Fact and Final Judgment in
favor of Green, awarding damages of $508,323.75 with pre-judgment and post-
judgment interest.
ANALYSIS
1. District Court Did Not Clearly Err in Denying SeaRiver’s Rule 52(c) Motion
and its Findings of Fact in its Judgment
We review a denial of a Rule 52(b) motion for abuse of discretion. We
review findings of fact made pursuant to Rule 52(c) for clear error and
conclusions of law de novo. Bursztajn v. United States, 367 F.3d 485, 488-89 (5th
Cir. 2004). We similarly review the trial court’s factual findings at judgment for
clear error. In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005).
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Since the appellant presents the same arguments against the trial court’s
adoption of the plaintiff’s findings of fact to infer liability at judgment and in its
denial of the Rule 52(c) motion, we will apply the same analysis to both of these
grounds for appeal.
The appellant contends no evidence supports the trial court’s conclusion
that the one-person one-line tie-up was dangerous; that Green was
inexperienced with one-line tie-up moorings; that the line was abnormally heavy
and different from the average line; that the particular mooring causing the
injury was non-routine; and that the Captain knew the line was heavy, because
it had absorbed water, and was, therefore, unsuitable for mooring. Trial
testimony from both the plaintiff and his Captain substantiated the court’s
finding that the line used in that particular mooring was heavier and larger than
previous mooring lines. The court emphasized the subsequent replacement of
the lines after the injury and filing of the lawsuit. While subsequent repair is
not evidence of fault, it can be used as evidence for causation. In this case this
evidence tends to show the mooring was likely unusual, because an alleged
abnormal line was replaced and discarded in favor of a more “normal” lighter
line. Compare Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 429 (5th
Cir. 2006); Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392, 396 (5th Cir. 1972).
Testimony also established that the line could have absorbed water and some
evidence that the one-line mooring became the standard practice after a crew
reduction. Sufficient evidence exists for the district court’s findings. The
appellant’s challenges stem from a choice between two competing witnesses,
which is not clear error. See St. Martin v. Mobil Exploration & Producing, 224
F.3d 402, 408 (5th Cir. 2000) (“Our only role is to determine whether the district
court committed clear error. Defendants' evidence on causation was before the
district court through their experts, as were the parties' contradictory
explanations . . . There is nothing in the record to indicate that the court
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committed clear error in accepting one explanation over another.”). There was
evidence that the line was unusual and the mooring different from the usual
situation, evidence that warning was inadequate, and evidence that the cause
of the injuries resulted solely from the mooring incident. The district court has
discretion to choose the plaintiff’s view of events.
The appellant also challenges the inference of causation as post-hoc. The
standard for causation in Jones Act cases is fairly lenient. Martin v. John W.
Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir. 1987) (quoting Landry v.
Two R. Drilling Co., 511 F.2d 138, 142 (5th Cir. 1975). While post-hoc reasoning
is generally fallacious by itself, such reasoning can be used to construe events
as an instance of a scientifically established cause-and-effect relationship. As
we noted in Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999), “[t]he
underlying predicates of any cause-and-effect medical testimony are that
medical science understands the physiological process by which a particular
disease or syndrome develops and knows what factors cause the process to occur.
Based on such predicate knowledge, it may then be possible to fasten legal
liability for a person's disease or injury.” In other words, if the plaintiff
establishes a scientific evidentiary predicate that a cause-and-effect relationship
exists, then circumstantial evidence related to the effect can be used to infer
cause. Curtis, 174 F.3d at 670. In this case, the appellant is not challenging the
reliability of Dr. Cupic’s testimony that established the cause-and-effect
relationship, like the appellant in Food Lion. Instead, the appellant is
challenging the trial court’s reliance on the expert testimony in its findings. Dr.
Cupic’s testimony was admitted, so the trial court could, in its discretion, credit
his testimony over others. See St. Martin, 224 F.3d at 408.
Accordingly, we cannot say the trial judge committed clear error. Otto
Candies, LLC v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 533 (5th Cir. 2003)
(“Under a clear error standard, this court will reverse only if, on the entire
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evidence, we are left with the definite and firm conviction that a mistake has
been made.”) (internal citations and quotations omitted). For the same reasons,
the trial court did not commit clear error as to his findings of unseaworthiness
and denial of the motion for a new trial.
2. The District Court Did Clearly Err In Calculating Damages
As the appellee concedes, the District Court did clearly err in calculating
pre-judgment interest as including future damages. The trial court improperly
awarded pre-judgment interest on the entire amount awarded, which included
future lost earnings, general damages, and medical expenses. However, under
maritime law, prejudgment interest can not be awarded on future damages. See
Couch v. Cro-Marine Transport, Inc., 44 F.3d 319, 328 (5th Cir. 1995).
Therefore, we vacate the judgment below as to the calculation of damages, and
remand for calculations without pre-judgment interest on future damages.
The appellant also asserts that while the judge’s memorandum ruling
denied SeaRiver a credit for disability benefits paid to Green, the actual
judgment and damage calculations incorporate the credit. The appellant asks
us to render an opinion reversing the memorandum ruling without affecting the
actual judgment. Such an opinion will not affect the rights of litigants and be
advisory in nature. See John Doe #1 v. Veneman, 380 F.3d 807, 814 (5th Cir.
2004). We decline to consider this issue on appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM the District Court’s Judgment, but
VACATE its calculation of damages, and REMAND for damages calculations
consistent with this opinion.
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