Willis v. Noble Drilling (US), Inc.

• Decision Date: 13 November 2012
• Docket Number: No. 11–CA–598.,11–CA–598.
• Citation: 105 So.3d 828
• Parties: Stephen L. WILLIS and Corinna J. Willis v. NOBLE DRILLING (US), INC., Century Exploration of New Orleans, Inc., and King Engineering Corporation.
• Court: Court of Appeal of Louisiana — District of US

105 So.3d 828

Stephen L. WILLIS and Corinna J. Willis

v.NOBLE DRILLING (US), INC., Century Exploration of New Orleans, Inc., and King Engineering Corporation.

No. 11–CA–598.

Court of Appeal of Louisiana, Fifth Circuit.

Nov. 13, 2012.

Scott R. Bickford, Lawrence J. Centola, III, Attorneys at Law, New Orleans, LA, for Plaintiffs/Second Appellants and First Appellees, Corinna and Stephen Willis.

Charles M. Lanier, Jr., M. Beth Meyer, Attorneys at Law, New Orleans, LA, James M. Tompkins, Lynne J. Shannon (Pro Hac Vice), Attorneys at Law, Houston, TX, for Defendant/First Appellant and Second Appellee, Noble Drilling (US), Inc.Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

SUSAN M. CHEHARDY, Judge.

[5 Cir. 2]In this case, both parties are appealing the lower court judgment. Noble Drilling US, Inc., defendant/first appellant, challenges the jury's verdict in favor of plaintiff. Stephen and Corinna Willis, plaintiffs/second appellants, challenge the trier-of-fact's apportionment of fault and the quantum of general damages. For the following reasons, we reverse in part, amend, affirm in part, and render the judgment.

Facts and Procedural History

In January of 2007, plaintiff, Stephen Willis, was assigned by his employer, Fugro Chance, to work as a survey party chief ¹ aboard the NOBLE LESTER PETTUS, a submersible drilling rig owned by Noble Drilling, US, Inc. (hereinafter “Noble”). On or about January 12, 2007, while the rig was en route from Pascagoula, Mississippi to its destination, a storm arose so the crew began to submerge the rig to ride out the storm.

As the crew submerged or “ballasted down” the rig, an unknown volume of elemental mercury was expelled through a small opening in the top of a large [5 Cir. 3]ballast control valve in the control room of the NOBLE LESTER PETTUS (hereinafter “LESTER PETTUS”). Several employees, including Mr. Willis and John Delaney, another Fugro Chance employee, were working in the control room at that time. Mr. Willis stated that mercury “rained” down on his arms, hands, and head, as well as the work surfaces. Mr. Willis also testified that he inhaled mercury and accidentally drank mercury that dropped into his coffee cup. Mr. Willis was unable to locate a Material Safety Data Sheet (“MSDS”) pertaining to mercury on board the LESTER PETTUS.

After about two hours, the rig was submerged and fully ballasted so Mr. Willis contacted his supervisor via satellite telephone to report the incident. His supervisor, Ken Daigle, instructed Willis on clean-up and first aid procedures. ²

Pursuant to his employer's instructions, Willis isolated the contaminated navigation equipment and set up a second set of navigation equipment. Mr. Willis also isolated the contaminated clothing. Mr. Willis did not, however, isolate his contaminated shoes, satellite telephone, or briefcase.

The next day, when Mr. Willis returned to the control room, he observed mercury on the second set of equipment. He reported the second release and waited while his company sent a third set of navigation equipment to the rig. Although he was not present in the control room for the second mercury release, he was exposed when he entered the area and contacted the second set of contaminated navigation equipment. The Daily Surveyors Report log for the control room for the following day reads, “It is indicated that [starboard] ballast indicator is still blowing mercury out of the relief valve.”

Four days later, Mr. Willis disembarked the LESTER PETTUS in Louisiana wearing his boots and carrying his briefcase. Two weeks later, Mr. Willis [5 Cir. 4]experienced continuous “rapid twitching” of his eyes, “enormous headaches,” and tremors and numbness in his hands. The next time that Mr. Willis was back onshore, he sought medical treatment from his family physician who referred him to an epileptologist.

Mr. Willis sued numerous defendants, including the vessel owner, Noble. After a five-day trial, the jury found that Noble's negligence caused Mr. Willis's injury and awarded Mr. Willis $600,000.00 for past and future lost wages. Both parties are appealing that judgment.

NOBLE'S APPEAL

On appeal, Noble raises eight assignments of error: first, the trial judge erred in finding that OSHA standards applied to Noble; second, the trial judge erred in finding that OSHA standards applied to the vessel M/V NOBLE LESTER PETTUS; third, the trial judge erred in finding that OSHA standards created a duty on the vessel owner to provide a MSDS to a non-employee; fourth, the trial court erred in finding that a violation of OSHA standards constitutes negligence; fifth, the trial court erred in enforcing a stipulation that was a mistake of fact; sixth, the trial court erred in allowing Corinna Willis to claim loss of society in a maritime action; seventh, the jury erred in awarding the plaintiff lost wages when it found that he had not suffered any general damages; and, eighth, the trial court erred in awarding costs when a timely motion for new trial on costs had not been filed.

In its fifth assignment of error,³ Noble argues that the trial court abused its discretion by refusing to allow Noble to withdraw its stipulation as to the location of the rig at the time of the mercury release. Noble avers that the stipulation that the incident occurred in State of Louisiana waters, to which it inadvertently agreed in the pre-trial order, is a mistake of fact. Plaintiffs argue that there is no specific [5 Cir. 5]evidence that the stipulation in question is a mistake of fact. Furthermore, plaintiffs argue that, even if the stipulation is a mistake of fact, plaintiff continued to be exposed to mercury through Noble's failure to adequately address the spill until he disembarked the LESTER PETTUS in Louisiana waters.

First, we cannot say that this issue was properly preserved for review. Our review of the record reveals the following statement from counsel for Noble during a bench conference after the jury was sworn and opening statements were delivered:

Before we read number three, I need to reurge my objection to the evidence. Stipulation No. 3 as[sic] part of an inadvertent error on our part. It's not an accurate depiction of the facts, and therefore we're asking the Court to recall that stipulation while the evidence is coming to show where [the] incident actually did occur.

Immediately thereafter, the trial judge allowed the stipulations to be read into evidence, including the statement that this release occurred in the waters of the State of Louisiana.

For an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection.⁴ Failure to contemporaneously object constitutes a waiver of the right to complain on appeal.⁵ Furthermore, the reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error.⁶

Even if the objection made during the bench conference was sufficient to preserve the issue for review, we would find no error in the trial judge's refusal to allow Noble to withdraw a stipulation after trial had commenced.⁷

[5 Cir. 6]A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law, and are the law of the case.⁸ Accordingly, the joint trial stipulation entered into by the parties in the present case had the effect of a judicial confession binding both the parties and the court.

By entering into the joint stipulation that the incident occurred in the waters of the State of Louisiana, the parties judicially admitted to the law that applied to this incident. The correctness of a judicial admission cannot later be denied when the party, which the admission benefitted, relied upon it to his or her detriment.⁹

Here, plaintiffs relied on the stipulation that the situs of the rig was not an issue at trial, and, thus, were not required to prove the rig's location. Having entered into the stipulation in the pre-trial order well in advance of trial, Noble cannot claim that the trial court erred in preserving the joint trial stipulation.¹⁰ We find no error in the trial court's ruling on this issue.

We return now to Noble's first assignment of error. In it, Noble argues that OSHA regulations do not apply to this case because OSHA governs only employer-employee conduct. First, we note that the Occupational Health and Safety Act is remedial legislation designed to protect employees from workplace dangers, and therefore must be liberally construed.¹¹

29 U.S.C. § 654(a) delineates the duties of employers under OSHA:

(a) Each employer—

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards [5 Cir. 7]that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Importantly, 29 U.S.C. § 654(a)(1) & (2) impose two distinct duties. First, (a)(1) requires employers to protect their own employees from hazards in the workplace. The employer's duty under (a)(1) flows only to its employees, as indicated by the language specifically limiting the employer's obligation to maintain a hazard-free workplace to “his employees.”

Second, (a)(2) requires employers to comply with the entire Act's safety standards. Unlike (a)(1), it does not limit its compliance directive to the employer's own employees, but requires employers to implement the Act's safety standards for the benefit of all employees in a given workplace, even employees of another employer. OSHA citations based on the multi-employer doctrine are issued under 29 U.S.C. § 654(a)(2). Thus, we conclude that, although Mr. Willis is not an employee of Noble, in this...