Parfait v. Transocean Offshore, Inc., 2004-CA-1271.

• Decision Date: 10 August 2007
• Docket Number: No. 2004-CA-1271.,No. 2005-CA-0174.,2004-CA-1271.,2005-CA-0174.
• Citation: 992 So.2d 465
• Parties: Terrell PARFAIT v. TRANSOCEAN OFFSHORE, INC., and Shell Oil Products Co.
• Court: Court of Appeal of Louisiana — District of US

992 So.2d 465

Terrell PARFAIT v. TRANSOCEAN OFFSHORE, INC., and Shell Oil Products Co.

No. 2004-CA-1271.

No. 2005-CA-0174.

Court of Appeal of Louisiana, Fourth Circuit.

August 10, 2007.

Michael X. St. Martin, Conrad S.P. Williams, III, Charles C. Bourque, Jr., St. Martin, Williams and Bourque, Houma, LA, Darryl M. Phillips, Philips & Mitchell, LLC, New Orleans, LA, for Plaintiff/Appellee, Terrell Parfait.

Timothy W. Cerniglia, Colvin Weaver & Cerniglia, New Orleans, LA, for Defendant/Appellant, Transocean Offshore USA, Inc./Shell Offshore, Inc.

Timothy W. Cerniglia, Sean M. Casey, Colvin Weaver & Cerniglia, New Orleans, LA, for Defendant/Appellant, Shell Offshore, Inc.

(Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).

LEON A. CANNIZZARO, JR., Judge.

On remand from the Louisiana Supreme Court¹, the court en banc was ordered to reconsider the opinion previously rendered by a panel of five judges of the court in Parfait v. Transocean Offshore, Inc., 2004-1271, 2005-0174 (La.App. 4 Cir. 1/05/07), 950 So.2d 8. The Supreme Court vacated the prior judgment, finding the five-judge panel did not reach a majority judgment on all issues.

The defendants, Transocean Offshore USA, Inc. and Transocean Offshore Ventures, Inc. (collectively referred to as "Transocean") and Shell Offshore, Inc. ("Shell"), had appealed from a trial court judgment rendered in favor of the plaintiff, Terrell Parfait, for damages he had sustained in a work-related accident.

After oral argument and reconsideration of the matter by the court en banc, the decision of the court as to the issues raised on appeal is summarized as follows:

It is the unanimous decision of the court that the plaintiff was entitled to a jury trial;

It is the unanimous decision of the court that the jury was clearly wrong in finding Shell negligent and the judgment against it must be reversed;

It is the unanimous decision of the court that the trial court did not abuse her discretion or err in allowing the expert testimony of Mr. David Williams and Mr. Robert Borison²;

It is the unanimous decision of the court that the trial court did not abuse her discretion or err in limiting the cross-examination of Mr. Borison;

It is the unanimous decision of the court that the trial court did not abuse her discretion or err in allowing the plaintiff to introduce evidence of Shell's other drilling projects;

Nine judges, i.e. a majority of the en banc panel (Chief Judge Armstrong and Judges Jones, Murray, McKay, Bagneris, Love, Lombard, Cannizzaro and Belsome) find no manifest error in the jury's finding Transocean negligent;

Three judges of the court (Judges Kirby, Tobias and Gorbaty) find the jury was clearly wrong in finding Transocean negligent and would reverse the judgment against it;

Five judges of the court (Judges Jones, McKay, Bagneris, Love, and Cannizzaro) would grant a de novo review because the trial court erred in excluding evidence of Mr. Parfait's earlier injury;

Four judges of the court (Chief Judge Armstrong and Judges Murray, Lombard and Belsome) find the trial court did not abuse her discretion or err in excluding evidence of the plaintiff's earlier injury;

As to the damages, six judges of the court (Chief Judge Armstrong and Judges Jones, Murray, Bagneris, Lombard and Belsome) would affirm the jury award of $1,701,029.11;

Two judges (Judges McKay and Love) would reduce the jury award to $1,312,979.11.

One judge (Judge Cannizzaro) would reduce the jury award to $712,029.11.

* * *

As the author of the original opinion, my opinion on remand is set forth below while the concurring and dissenting opinions of my fellow brethren follow.

FACTS

On April 23, 1999, Mr. Parfait was injured while working as a floor hand aboard the Transocean Rather ("Rather"), a semi-submersible drilling rig owned and operated by his employer, Transocean. The Rather was under contract with Shell to drill several oil wells in the Gulf of Mexico, as part of Shell's deepwater Europa project. At the time of the accident, Mr. Parfait and other crewmembers were working on two elevated platforms running sections of pipe, called the inner string, through a high-pressure wellhead that would later be lowered to the seabed.

The wellhead used on the Rather was a model SS-15, which was designed and manufactured by Dril-Quip, Inc. ("Dril-Quip"). Shell engineers selected Dril-Quip's SS-15 wellhead based on its particular attributes needed for the Europa wells, particularly the ability of the wellhead to combat an underground phenomenon known as "shallow water flow." To deploy the wellhead, it had to be placed in the rotary table, a large circular opening on the floor of the drilling rig. The wellhead was supported in the rotary table by a flat, steel plate, called a wellhead support plate, which was designed and manufactured by Dril-Quip and owned by Shell. With the SS-15 wellhead sitting on the support plate, the top of the wellhead extended about 5½ feet above the drill floor. The inner string of pipe was run through the wellhead until enough pipe hung below the wellhead to attach the wellhead and the inner string to the drill string, which was then lowered to the seabed. Each joint of the inner string run through the wellhead was attached to the preceding joint and then tightened with two sets of tongs, which were operated by the floor hands. The tongs consisted of two large wrenches approximately 4½ feet long that were suspended 6½ and 7½ feet above the drill floor by steel cables. The "lead tongs" were placed on the existing joint of pipe, which protruded about a foot or more above the top of the wellhead, while the "backup tongs" were placed on the bottom of the new joint of pipe to be attached and tightened. For optimal control, the floor hands had to grip the tongs somewhere between waist high and shoulder high. In order to do so, they had to stand on elevated work platforms while running the inner string, a process that took three to five hours to complete.

Transocean had fabricated the elevated work platforms that were used on the Rather. They were made of steel and had adjustable legs, allowing the floor hands to stand a maximum of 3 feet, 11¼ inches above the drill floor. The surface area of the platforms measured 3 feet wide by 5 feet, 1 inch long and was made of open metal grating with serrated teeth. At the time of the accident, Mr. Parfait and Mark Age, another floor hand, were standing on one elevated platform attempting to latch and tighten the lead tongs onto the drill pipe when Mr. Parfait fell from the platform, landing on the drill floor. As a result of the fall, Mr. Parfait fractured his right wrist and injured both knees. Following the accident, he underwent multiple surgeries for the wrist injury, as well as arthroscopic surgery on each of his knees to repair a torn medial meniscus.

PROCEDURAL HISTORY

Mr. Parfait filed a suit for damages on August 12, 1999, under 46 U.S.C.App. § 688, commonly referred to as the Jones Act, and general maritime law pursuant to the "saving to suitors" clause in 28 U.S.C. 1333, naming Transocean and Shell as defendants. Referencing the restriction of La. C.C.P. art. 1732(6)³, Mr. Parfait did not request a jury trial at that time. However, on September 5, 2000, he filed a jury request and bond, which the trial court denied as not in accord with La. C.C.P. art. 1733 C⁴. Subsequently, at a pretrial conference held on May 8, 2001, the trial court signed a jury trial order and set the matter for trial on January 8, 2002. Transocean and Shell filed a joint motion to strike the request for a jury trial and to vacate the jury order. Meanwhile, Mr. Parfait filed a motion to continue the trial, which the trial court granted. He then filed a third supplemental and amended petition, adding Dril-Quip as a defendant, and a second request for a jury trial and jury bond, which the trial court granted. Shell and Transocean again filed a joint motion to strike the request for a jury trial and motion to vacate the jury order.

On July 30, 2002, with leave of court and over the defendants' objections, Mr. Parfait filed a fourth supplemental and amending petition deleting the specific reference to La. C.C.P. art. 1732(6) in the second paragraph of his petition, but still maintaining his action as one under the Jones Act and general maritime law. Shortly thereafter, the trial court denied Shell and Transocean's joint motion to strike the jury request and motion to vacate the jury order.

The case proceeded to trial before the jury on January 20, 2004. At the close of the plaintiff's case, Shell and Dril-Quip moved for directed verdicts. The trial court granted a directed verdict in favor of Dril-Quip, dismissing it from the suit, but denied Shell's motion. Following the trial, the jury rendered a verdict in favor of the plaintiff finding Transocean 75% negligent under the Jones Act and Shell 25% negligent under general maritime law. The jury also found the Rather was not unseaworthy. In accord with the jury's verdict, the trial court rendered a judgment awarding Mr. Parfait damages of $125,035.00 in past lost wages; $300,000.00 in loss of future earning capacity; $5,994.11 in past medical expenses; $250,000.00 in future medical expenses; $20,000.00 in future lost benefits; and $1,000,000.00 in general damages for a total award of $1,701,029.11.⁵ Transocean and Shell filed a joint motion for a new trial, or alternatively motion for remittitur on the issue of general damages awarded by the jury, and Shell filed a motion for a judgment notwithstanding the verdict (JNOV). The trial court denied the post trial motions. Transocean and Shell appealed. Mr. Parfait...