Opinion
No. 98-CA-3009.
October 13, 1999. Writ Denied January 14, 2000.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 95-7528, STATE OF LOUISIANA, DIVISION "L", HONORABLE MAX N. TOBIAS, JR., JUDGE.
John A. Bolles, Gerald M. Baca, Terriberry, Carroll Yancey, L.L.P., 3100 Energy Centre, 1100 Poydras Street, New Orleans, La 70163-3100, COUNSEL FOR DEFENDANT/APPELLANT.
Jacques F. Bezou, Nick F. Noriea, Jr., Bezou Matthews, 534 East Boston Street, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLEE.
(Court composed of Judge James F. McKay III, Judge Dennis R. Bagneris Sr., Judge Robert A. Katz).
STATEMENT OF THE CASE
Jerome Williams filed suit against Maritime Overseas Corporation for injuries received as a result of an accident while employed as a seaman on board the M/S OVERSEAS ARCTIC, a vessel owned by Maritime Overseas Corporation. The ensuing lawsuit was filed under the Jones Act and general maritime law of unseaworthiness of the vessel. At trial, the jury unanimously found for the plaintiff on the issues of the occurrence of an accident, negligence under the Jones Act, unseaworthiness, comparative negligence and medical causation.
Maritime Overseas Corporation, defendant, appellant, appeals the judgement dated July 1, 1998, awarding the plaintiff, Jerome Williams, two million dollars ($2,000,000.00) plus stipulated medical expenses in the sum of forty-eight thousand, five hundred sixty-six and 84/100 ($48,566.84). The judgment also awards the plaintiff interest from the date of judicial demand. From this verdict, the defendant, Maritime Overseas Corporation, appeals.
STATEMENT OF THE FACTS
Jerome Williams was employed as a permanent bosun on the OVERSEAS ARCTIC, a vessel owned by the defendant, Maritime Overseas Corporation, from 1991 until his discharge on September 6, 1994. During Mr. Williams' final voyage in 1994, he was in the process of disconnecting pipes, a service necessary in order for the ship to leave port. As Mr. Williams attempted to perform this task, the second pipe cracked and crude oil began to spout from the pipe. The nuts and bolts used to connect the pipe had fallen into a drip pan containing crude oil and chemical agents (benzene and styrene), agents that were used to dilute the crude oil. Mr. Williams placed his gloved hands into the drip pan in order to retrieve the nuts and bolts so as to reconnect the pipe and stop the flow of oil. The leak was terminated, and Mr. Williams cleaned up. Aaron Thibodeaux, another seaman, testified as a corroborating witness to this series of events, and to Mr. Williams' subsequent complaints of discomfort.
When Mr. Williams reached port in Louisiana, he sought medical attention. As a result of these chemical burns, Mr. Williams developed keloid scars on his hands; these scars led to the ultimate demise of his marriage, to being declared permanently disabled by the Social Security Administration, and to becoming emotionally withdrawn and depressed. Mr. Williams received treatment from several physicians for his keloid scarring.
ASSIGNMENTS OF ERROR
Maritime Overseas Corp. specifies two errors on appeal for review: (1) the jury verdict in favor of the plaintiff Jerome Williams ignored the "competent medical evidence" which definitely proved that the cause of plaintiff's disfiguring condition was not related to trauma, and (2) the trial court erred in "awarding prejudgment interest from the date of judicial demand."
Under issues presented for review, the defendant/appellant broadened the inquiry for appeal by stating that the issue was whether or not "the jury's verdict (was) clearly wrong?"
During oral argument, counsel for Maritime Overseas Corporation admitted that it was no longer contesting the occurrence of the trauma but only the issue of whether there was medical evidence that connected the plaintiff's keloidal scarring of the hands with the trauma resulting in Mr. Williams being totally unable to return to work.
FIRST ASSIGNMENT OF ERROR
Whether or not there was competent medical evidence to prove that the cause of Jerome Williams' disfiguring condition was related to the trauma, complained of and which resulted in his total disability.
The defendant contends that the plaintiff did not sustain keloid scarring of the hands as a result of contact with certain chemicals. Rather, the defendant argues that the plaintiff suffered a "systemic problem resulting from his longstanding and morbidly high cholesterol and triglyceride levels which caused Xanthomas."
Transcript, Vol. II, pages 43-46, explain that a Xanthoma is an accumulation of blood fats or lipids which presents as lumps or other lesions on the knuckles, wrists, elbows and knees in individuals who suffer from hyperlipidema (excessive blood fat). These lumps may also appear on the palms of the hands as a heavy callus-like formation.
The plaintiff was examined by several doctors: Dr. Kweli Amusa; Dr. James Heneghan, Internist at Tulane University Medical Center; Dr. Fernando Palomaque, Dermatologist in Houma; Dr. John Kokemor, Internist; Dr. Samuel Parry, Plastic Surgeon; Dr. Harold Stokes, Orthopedic Surgeon specializing in hand injury.
Additionally, two pathologists reviewed the various tissue from the plaintiffs hands and/or arms: Dr. Paul Riehl and Dr. Richard Reed — both doctors at Touro Infirmary.
Dr. Reed testified by deposition and was asked the question: "Based on what you saw in your examination, would you draw any relationship between the tissue samples that you saw and any sort of trauma?"
Dr. Reed responded: "No. I . . . can't do that because essentially what I saw were manifestations of a metabolic disease. That . . . this patient that doesn't properly handle lipids, and those lipids leak out of the blood into the tissue and form tumors." Dr. Harold Stokes testified that after an examination and review of the record that it was his impression that the plaintiffs hand lesions were more likely xanthomas rather than keloids.
Dr. Kokemor testified that the condition of the plaintiffs hands was consistent with his exposure to powerful chemicals.
Dr. Riehl's first report was dated March 2, 1998. The first report diagnosed the tissue sample of the plaintiff as "skin, left hand, arm, hypertrophic and keloid scars."
The second tissue sample was collected on March 13, 1998 and was diagnosed as "skin, left arm, sclerosing xanthoma."
On the other hand, Dr. Samuel Parry, issued a report in which he concluded that the "lesions excised from the left hand and arm are hypertrophic and keloidal scars." Dr. Parry testified that the scarring on the plaintiffs hands appeared to be a result of chemical burns and diagnosed his condition as keloid vis-a-vis xanthamos.
Dr. Palomeque treated the plaintiff from May, 1995 until October, 1996, and testified by deposition that the lumps "looks like keloids and not xanthamos."
Dr. Kokemor testified that the condition of the plaintiffs hands was consistent with his exposure to powerful chemicals.
Thus, it is clear that the jury accepted the diagnosis by Drs. Parry, Palomeque and Kokemor that the plaintiff Jerome Williams had suffered severe chemical burns resulting in keloidal scarring of his hands.
The Supreme Court with Justice Victory as the organ inMilstead v. Diamond M. Offshore, Inc. 676 So.2d 89 (La. 1996) at page 91 stated: "We granted certiorari in this maritime personal injury case to resolve a conflict among the circuits regarding the standard of appellate review to be applied when reviewing admiralty cases decided in state courts under the `Saving to Suitors' Clause and under the Jones Act, and to address the appropriateness of awarding prejudgment interest on fixture damages. We find that the federal principles of appellate review are not binding upon our state courts in the exercise of concurrent maritime jurisdiction, and that Louisiana's manifest error standard of review controls. We further find that federal law clearly precludes the award of prejudgment interest on future damages, including future lost earnings and future pain and suffering."
Accordingly, the Court finds that the jury did not commit manifest error in accepting the testimony of Drs. Kokemor, Palomeque, and Parry as opposed to the other doctors who testified to the contrary.
Accordingly, the Court finds that this assignment of error is without merit.
SECOND ASSIGNMENT OF ERROR
Maritime Overseas Corp. contends that the trial judge erred in awarding prejudgment interest.
After reviewing the record and evidence, the court finds that the interrogatories submitted to the jury did not distinguish between future damages and past damages. Moreover, this Court is not in a position to second guess the jury and apportion the two million dollars ($2,000,000.00) vis-à-vis past damages and future damages. Hence, under the Milstead decision by the Supreme Court the plaintiff is not entitled to prejudgment interest. Thus, the trial court erred in awarding the plaintiff Williams prejudgment interest.
Consequently, we amend the judgment of the trial court dated July 1, 1998, to reflect that interest shall run from the date of judgment, i.e. July 1, 1998 until paid.
AFFIRMED IN PART: AMENDED IN PART
BAGNERIS, J., CONCURS IN PART; DISSENTS IN PART.
While I agree with the Majority that there is no error in the trial court's decision on the merits of the plaintiffs claim, I disagree with the Majority opinion that the trial court erred in awarding prejudgment interest on a lump sum award.
The Supreme Court addressed the issue of prejudgment interest in Milstead v. Diamond M. Offshore, Inc., 676 So.2d 89 (La. 1996):
An award of prejudgment interest in state maritime cases is substantive in nature such that federal law controls. Mihalopoulos v. Westwind Africa Line, 511 So.2d 771, 781 (La.App. 5th Cir. 1987); Morris v. Schlumberger, Ltd., 436 So.2d 1178, 1179 (La.App. 3d Cir. 1983), writ denied, 441 So.2d 1221 (La. 1983).
Under federal law, a plaintiffs entitlement to prejudgment interest in a maritime case depends upon the nature of his claim, particularly the basis from which the federal court derives its subject matter jurisdiction. Federal courts derive their maritime jurisdiction from either the constitutional and statutory grant of such power, referred to as "admiralty jurisdiction," or from conventional sources such as diversity or federal question. THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW, § 3-2 (2d ed. 1994); David G. Douglas, THE CURRENT STATUS OF THE AVAILABILITY OF PREJUDGMENT INTEREST IN ADMIRALTY, 17 Tul.Mar.L.J. 283 notes 6-13 (1993).
If the court's jurisdiction is based solely upon conventional sources, such as federal question, the court applies federal law with respect to awarding interest. Since the statute governing the payment of interest in civil cases in federal courts, 28 U.S.C. § 1961, provides that interest shall be calculated from the date of entry of the judgment, prejudgment interest is generally prohibited in such maritime cases. Theriot v. J. Ray McDermott Co., 742 F.2d 877, 883 (5th Cir. 1984); Douglas, supra note 16 (1993). As such, the courts have consistently refused to grant prejudgment interest on awards recovered under the Jones Act.
Nonetheless, there is an exception to this general rule. Even if the court hears a suit based solely upon federal question, it can sit in "admiralty" if the case is tried before a judge and not a jury. Thus, when an action is based strictly upon the Jones Act, prejudgment interest may be recovered as long as the case is tried to the court and the court exercises its admiralty jurisdiction. Martin v. Walk, Haydel Associates, Inc., 794 F.2d 209 (5th Cir. 1986); Williams v. Reading Bates Drilling Co., 750 F.2d 487, 490-491 (5th Cir. 1985). In the case at bar, the jury awarded prejudgment interest on the Jones Act award.
When prejudgment interest has been allowed in a maritime claim tried in state court under the Jones Act, the determination of whether to grant prejudgment interest has to be submitted to the jury. Havis v. Petroleum Helicopters, Inc., 664 F.2d 54 (5th Cir. 1981).
In the instant case, counsel for each respective party discussed the interrogatories with the court. The jury was given the interrogatories, in which they were asked to assess damages on a lump sum basis. Neither counsel objected to the charge of Interrogatories. Further, the interrogatories did not make a distinction between future damages and past damages.
Therefore, it is my opinion that the jurisprudence on prejudgment interest regarding past damages and future damages is not applicable to the facts of the instant case. The trial court did not apportion the sums awarded to the plaintiff. I would remand this case to the trial court for a division of the judgment into past and future damages. In the trial court's discretion, prejudgment interest may be awarded only on past damages.