Diamond Offshore Servs. Ltd. v. Williams

• Citation: 510 S.W.3d 57
• Decision Date: 21 July 2015
• Docket Number: NO. 01–13–01068–CV,01–13–01068–CV
• Parties: DIAMOND OFFSHORE SERVICES LIMITED and Diamond Offshore Services Company, Appellants v. Willie David WILLIAMS, Appellee
• Court: Court of Appeals of Texas

510 S.W.3d 57

DIAMOND OFFSHORE SERVICES LIMITED and Diamond Offshore Services Company, Appellants

v.Willie David WILLIAMS, Appellee

NO. 01–13–01068–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued July 21, 2015

Rehearing Overruled April 28, 2016

Constance H. Pfeiffer, Steven Kermit Best, David M. Gunn, Thomas Patrick Baynham, for Appellants.

Michael P. P. Doyle, Jeffrey L. Oldham, Walter Z. Steinman, for Appellee.

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

OPINION

Sherry Radack, Chief Justice

In this Jones Act case, Willie David Williams sued Diamond Offshore Services Limited and Diamond Offshore Services Company (collectively, "Diamond Offshore") for negligence and unseaworthiness arising out of an incident in which Williams allegedly injured his back while trying to repair a piece of machinery on board an offshore oil rig owned and operated by Diamond Offshore. The trial court rendered judgment on the verdict in favor of Williams, awarding Williams, once all applicable credits and offsets had been applied, approximately $8.5 million in compensatory damages, $235,381 in pre-judgment interest, and post-judgment interest. In three issues, Diamond Offshore contends that (1) the trial court erroneously excluded a post-incident surveillance video depicting Williams performing various outdoor activities; (2) the trial court erroneously excluded evidence that Diamond Offshore paid Williams 85% of his pre-incident salary for three years before trial; and (3) the jury's damages awards for past and future disfigurement, future medical expenses, loss of future earning capacity, future pain and mental anguish, and future physical impairment were excessive.

We affirm.

Background

Diamond Offshore owned and operated the Ocean Lexington, a drilling rig located off the coast of Egypt in 2007–08. Williams, who had worked for Diamond Offshore on two different occasions and in various capacities for approximately a decade, was a mechanic on the rig. He worked on the rig in alternating "hitches": twenty-eight days on the rig, followed by twenty-eight days off.

On the afternoon of January 7, 2008, the day before Williams was scheduled to return to the United States, one of the drillers informed him that a set of elevators on the rig had failed and that he needed to repair it.¹ Specifically, the driller told Williams that the rig was "going down" unless Williams repaired the elevators. Williams testified that, to him, this directive meant, "By any means necessary, fix it."

Williams worked on the elevators for about thirty to forty minutes. Williams bent over at the waist to maneuver the elevators, which weighed several hundred pounds, into his work area. Williams did not lift the elevators; instead, he "scoot[ed]" them around on the floor of the shop. While he worked on the elevators, Williams felt a "sharp pain in [his] lower back after a few minutes." After he finished working, Williams saw the doctor onboard the rig, who advised him to rest. The next morning, Williams bent over while sitting on his bed and felt discomfort in his back.

Because his back continued to hurt after he arrived home, Williams saw Dr. Patrick Barrett, an orthopedic surgeon, ten days after the incident. Although he is an independent physician and not a company doctor, Dr. Barrett has "seen patients off and on over the years for" Diamond Offshore, and Diamond Offshore referred Williams to Dr. Barrett after his injury in this case. Williams reported that he had leg pain in addition to back pain. Williams also told Dr. Barrett that he had injured his back on a rig in 2006, approximately two years before the incident at issue here. Williams acknowledged at trial that he had had ongoing back pain since the first incident, but that pain had "never stopped [him] from doing [his] job."²

Upon seeing Williams, Dr. Barrett ordered an MRI of Williams's lumbar spine. The MRI revealed a "small central herniation" at the L4–L5 vertebrae, "degenerative changes at multiple levels," and a "very small central bulge" at the L5–S1 vertebrae. Dr. Barrett saw Williams again in March 2008 after approximately six weeks of physical therapy. Williams had "rather significant pain in the mid to lower lumbar area," and another MRI revealed a herniation at L1–L2, a central disc protrusion at L4–L5, and another disc protrusion at L5–S1. In April 2008, Dr. Barrett performed a micro discectomy at L5–S1 to relieve Williams's lingering leg pain. Dr. Barrett testified that this surgery alleviated Williams's leg pain, but Williams's back pain remained unchanged and "continue[d] to be a major problem." Dr. Barrett's notes reflected that Williams was "simply unable to bend or stoop or lift more than about 20 pounds without his back bothering him quite a bit."

In an attempt to relieve Williams's back pain, Dr. Barrett performed a fusion surgery in February 2009. This surgery involved inserting screws and rods into Williams's back. Dr. Barrett, who testified via video deposition taken in April 2012, nearly a year and a half before trial, stated that he had seen Williams one month prior to his deposition and that Williams still had problems with the nerve located next to the L5 vertebrae, which caused Williams's foot to drop and resulted in Williams's inability to raise his toes. Dr. Barrett testified that, in his opinion, further surgery would probably not help relieve Williams's lingering back pain. Dr. Barrett acknowledged Williams's pre-existing degenerative changes in his back but testified that the incident at issue caused all of Williams's current medical problems. Dr. Barrett stated that he would not release Williams to return to his former career on an offshore rig, and he opined that Williams "would have a hard time maintaining any kind of gainful employment due to his chronic pain, his chronic neurological findings; and I would professionally consider him totally disabled at this point." He further opined that, as a result of his chronic pain, Williams would likely "have a hard time even sustaining sedentary type work where he had to sit."

Dr. Jose Rodriguez, another orthopedic surgeon, testified that he reviewed Williams's medical records but did not treat Williams. Dr. Rodriguez stated that, in his opinion, "[t]he repetitive work that [Williams] was doing with some type of lifting associated with it caused his ruptured disc." Dr. Rodriguez testified that, after the fusion surgery, even if Williams was pain free, he would still restrict Williams to lifting not more than thirty pounds regularly and fifty pounds infrequently to avoid damaging the fusion. Dr. Rodriguez would also place restrictions on standing, sitting, and walking for long periods of time, as all of these actions place stress on the lumbar spine. Dr. Rodriguez agreed with Dr. Barrett that Williams could not return to his pre-incident offshore work. He stated that Williams could "do light-duty work if the tolerance to his [pain] allows him to function through a whole day of work."

Dr. Rodriguez testified that Williams could potentially undergo another surgery in the future to remove the screws and rods currently implanted in his back, which would hopefully improve his pain by at least fifty percent. He estimated that this procedure could cost up to $100,000. Dr. Rodriguez also testified that, even if Williams undergoes this "hardware removal" surgery, he would still have the same functional restrictions as before. He stated that Williams will need pain medications and some kind of physical exercise regimen daily for the remainder of his life, which could range in cost from $5,000 to $10,000 per year.

Dr. Kenneth McCoin testified as Williams's economics expert. He testified that he calculated Williams's past lost earning capacity, measured from the date of the incident to the trial date, at $557,793 and his future lost earning capacity at $2,254,275. Dr. McCoin based his calculations on Williams's pre-incident annual salary of $134,000, the growth rate in wages, the fringe benefits, such as health insurance, the fact that Williams had received as a result of being employed, and Williams's work-life expectancy. Dr. McCoin stated on cross-examination that the "implicit assumption" in his calculations was that Williams would never return to any kind of work. He acknowledged that if Williams did return to work, his calculations would need to be reduced by the amount of Williams's new salary.

Williams no longer had tingling and numbness in his right leg after the first surgery in April 2008, but he testified that his back pain had never gone away. He stated that he had also developed a "foot drop problem," where one of his feet drags and he can no longer walk straight even on carpeted floors. Williams testified that, since the incident, he had tried to "live [his] life and do things," but that he had not "held a job where [he] receive [s] a check from anyone."

In July 2011, Williams underwent a "Functional Capacity Evaluation" that concluded that Williams could perform "medium level work." Diamond Offshore's counsel asked Williams about this evaluation and about Dr. Rodriguez's testimony that Williams could "lift 30 pounds on a frequent basis and 50 pounds on an occasional basis" and whether Williams had attempted to find a job within those particular restrictions. Williams responded that he had not and further testified:

[I've] been going through back surgery, two back surgeries. I get injections all the time. My back hurts constantly. I just saw the doctor three weeks ago. He wants to do exploratory surgery on my back. It's not just my back. Over the last year the—they have the documentation to show you this—the nerves between my back and my foot are not communicating anymore; and I can't move my toes, just my big toe. My toes are curling up under me. It's letting my foot drop down, and it's progressively getting worse and worse. So, I've just been talking to the doctors. They—I'm really not wanting

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