Johnson v. Offshore Exp., Inc.

• Decision Date: 03 June 1988
• Docket Number: No. 86-3302,86-3302
• Parties: Barbara Jean JOHNSON, Plaintiff-Appellee, Cross-Appellant, v. OFFSHORE EXPRESS, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1347

845 F.2d 1347

1990 A.M.C. 1214

Barbara Jean JOHNSON, Plaintiff-Appellee, Cross-Appellant, v. OFFSHORE EXPRESS, INC., Defendant-Appellant, Cross-Appellee.

No. 86-3302.

United States Court of Appeals,

Fifth Circuit.

June 3, 1988.

Rehearing Denied July 6, 1988.

James O.M. Womack, Henry S. Provosty, Burke & Mayer, New Orleans, La., for Offshore Exp., Inc.

Charles A. Verderame, New Orleans, La., for Johnson.

Edward J. Rice, Jr., New Orleans, La., for Dr. Alain F. Cracco.

William S. Penick, New Orleans, La., for Dr. R.C. Llewellyn, et al.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, KING and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Offshore Express appeals a judgment by the district court in favor of Barbara Johnson, a seaman injured while employed by Offshore. The district court found Offshore negligent under the Jones Act and the M/V CHAMPION EXPRESS, upon which Johnson was working, unseaworthy. The court awarded Johnson damages for lost earnings, pain and suffering, and disfigurement and total permanent physical disability. Johnson, on cross-appeal, asserts that the damages awarded were inadequate. Offshore also appeals the district court's denial of its motion for a new trial based on newly discovered evidence and fraud. We affirm.

I. Factual Background and Prior Proceedings

In November 1982, appellee/cross-appellant Barbara Johnson sought employment with appellant/cross-appellee Offshore Express, Inc. as an able bodied seaman and cook. Johnson, although only approximately five feet in height, had previously accumulated over 150 days of sea time with various offshore vessel companies and had obtained an able bodied seaman's license from the United States Coast Guard. Offshore hired Johnson, and on or about April 22, 1983, assigned her to a 165 foot supply boat, the M/V CHAMPION EXPRESS, to carry out sanitation and maintenance duties inside the enclosed cabin area of the vessel. Because of Johnson's height and inexperience, it was agreed that she would perform no duties outside the enclosed cabin area.

On April 22, 1983, while the M/V CHAMPION EXPRESS was still in dock, the mate, James Clay, ordered Johnson to make up the bunks in the passenger quarters of the vessel. Johnson did not comply with the order. On April 27, 1983, while the vessel was moored to an offshore drilling platform, Clay once again ordered Johnson to make up the bunks. At the time, the M/V CHAMPION EXPRESS was moored "side to" the platform and the seas were at four to six feet. Winds were ten to fifteen knots. This time Johnson complied with the mate's order and began to make up the bunks. Johnson asserts that while she was making up an upper bunk, a shift by the vessel caused her to fall from the bunk some six feet to the deck and land on her lower back. She asserts she had been making up the bunk from a kneeling position on the mattress with her legs dangling over the edge. She claims that she had been making up the bunk in this manner because she was unable to reach the width of the upper bunk by standing on the deck, or on the folding step used to facilitate entry into the bunk, or on the sideboard of the lower bunk. The accident was unwitnessed, although the cook for the vessel, in the nearby galley, heard a disturbance. Upon entering the passenger quarters, the cook saw Johnson on the floor in obvious pain.

The following day the vessel docked on shore, and Johnson was taken by ambulance to the Abbeville General Hospital in Abbeville, Louisiana. She was discharged the following day. Hospital records reported a large bruise on Johnson's lower back. Johnson returned to her residence in Galveston, Texas, and was examined by Dr. John Moore just over ten days later. She complained of severe headaches, back pain, and urinary problems. A bruise was still visible on Johnson's lower back. Johnson moved to New Orleans and began medical treatment with Drs. Alain F. Cracco, an orthopedic surgeon, and R.C. Llewellyn, a neurosurgeon. During an examination by Dr. Cracco on June 3, Johnson complained of pain, urinary problems, inability to sit up, and numbness and weakness in her left leg. Johnson exhibited a list of the lumbar spine to the left. Dr. Cracco referred her to Dr. Satish Karnik, a urologist, for a urological evaluation of her urinary problems. ¹ Drs. Cracco and Llewellyn then performed back surgery on Johnson primarily to relieve compression of nerve roots, believed to have been brought on by trauma from the fall.

Johnson remained in the hospital recovering from this surgery until September 1983, when, after achieving significant recovery, she was transferred to another hospital to undergo intensive physical and occupational therapy. Johnson's condition, however, began to deteriorate--she began to exhibit a 10 degree hip flexion, internal rotation of her left hip, leg, and foot, and curvature of the spine. She also complained of experiencing great pain and being unable to walk.

On December 5, 1983, Dr. Richard Levy, a neurosurgeon, examined Johnson. During this examination, Johnson walked with a severe tilt to the left with her left hip, leg, and foot inwardly rotated. She claimed this posture helped to relieve the pain she was experiencing. She exhibited severe paraspinal muscle spasms and numbness in the lower part of both legs and said she was still experiencing urinary problems. Dr. Levy diagnosed Johnson as suffering from arachnoiditis, ² probably arising from complications from the previous back operation. One week later, Dr. Cracco re-examined Johnson and decided to perform exploratory surgery and remove an arachnoid cyst which apparently had developed from complications from Johnson's initial back surgery. After recovering from this second operation, Johnson resumed her therapy. She remained in the hospital until the end of May, except for a short period during April at another hospital where she had a gall bladder operation.

Johnson was discharged from the hospital in June 1984, and transferred to the Touro Pain Center. Here, she was examined by Dr. Gary Glynn, who could find no major neurological dysfunction. Johnson continued to exhibit a tilted hip and an inwardly rotated left hip, leg, and foot which she claimed helped to relieve the pain she was experiencing. Dr. Richard Morse, a psychiatrist and neurologist at Touro, reviewed reports from various examining physicians and concluded that Johnson may have been exhibiting complications and symptoms that were not really present and may have been experiencing various psychiatric disorders. He felt that some of Johnson's pain may have been brought on by emotional factors. Dr. Morse characterized Johnson as not being very open to counseling and not exhibiting any motivation to improve her condition. Dr. Morse, however, did not disbelieve that Johnson was experiencing great pain.

Due to Dr. Morse's conclusion that Johnson was not responding to treatment at the Touro Pain Center, Johnson was discharged to home care after about a month. She then rented an apartment in New Orleans. Her teenaged son Michael helped care for her. She made periodic visits to doctors and physical therapists during this time. She remained on pain medication but was able to walk with crutches by the end of the year. Dr. Neil Baum, a urologist, examined Johnson on August 31, 1985, and confirmed Dr. Karnik's diagnosis of urinary stress incontinence, but he did not conclude that Johnson was also suffering from a neurogenic bladder. During a second visit to Dr. Levy on November 26, 1985, now two and a half years after her injury, Johnson continued to complain about severe pain in her lower back, left hip and leg, numbness in the left leg, and urinary problems. She held her left leg and foot inwardly rotated.

In the meantime, Johnson had filed suit against Offshore on October 25, 1983, in the United States District Court for the Eastern District of Louisiana. As a seaman employed by Offshore at the time of her injury, she advanced claims of negligence under the Jones Act, 46 U.S.C. Sec. 688, and unseaworthiness under general maritime law. On October 16, 1984, Offshore filed a third-party medical malpractice action against two of Johnson's treating physicians, Drs. Cracco and Llewellyn, for indemnity for the maintenance and cure payments Offshore made to Johnson and for damages incurred by Offshore as a result of alleged negligence and unwarranted medical treatment by the two doctors.

Both actions were tried without a jury beginning January 6, 1986. After an eleven day trial, the district court rendered judgment in favor of Johnson on her claims of Jones Act negligence and unseaworthiness against Offshore and the M/V CHAMPION EXPRESS. The court found Offshore 80% at fault for Johnson's injuries and Johnson 20% at fault. The court ruled in favor of Drs. Cracco and Llewellyn on Offshore's third-party action against them, holding that malpractice was not proved. The court awarded Johnson damages of $37,180 for past lost wages; $123,708 for future lost wages; $370,000 for past and future mental pain and suffering; and $185,000 for past, present, and future disfigurement and physical disability. ³

Johnson filed a number of post-trial motions, urging the court to reconsider several of its findings. She urged that the court had erred in its failure to award her any damages for her urinary problems. In addition, she claimed the court's calculation of damages attributable to lost wages was too low because it was based on the incorrect assumption that she only worked nine months a year. Johnson also pointed out that Offshore was entitled to a $10,056 credit in the judgment against it for maintenance and support paid by Offshore prior to the trial. The district court issued an amended judgment on April 8, 1986, to incorporate the $10,056 credit for Offshore, but did not grant Johnson any further relief. Offshore then...