Youn v. Maritime Overseas Corp.

Decision Date03 September 1993
Docket NumberNo. 92-C-3017,92-C-3017
Citation623 So.2d 1257
CourtLouisiana Supreme Court

Paul H. Due, Lewis O. Unglesby, Gordon R. Crawford, and Donald W. Price, Due, Smith, Caballero, Price & Guidry, Baton Rouge, for applicant.

Maurie D. Yager, Terriberry, Carroll & Yancey, and Gerard T. Gelpi, Norman C. Sullivan, and C. Gordon Starling, New Orleans, for respondent.

LEMMON, Justice. *

The sole issue before the court in this personal injury case is whether the court of appeal erred in reducing the trial court's award of general damages and in deleting the award of loss of found.

Plaintiff, a boatswain on a Liberian oil tanker, was injured aboard ship in May of 1989 when a steam valve on the port winch opened too quickly, causing the drum to spin and the cable to whip around the deck out of control. When plaintiff attempted to prevent the boom from falling on his shipmates, the cable wrapped around plaintiff's left thigh and crushed his leg.

Plaintiff filed this action against the vessel owner, the supplier of the crew that operated the vessel, and their insurer. After a bench trial, the judge found the defendants negligent in failing to repair the control lever known to be broken and to train the crew properly. Further finding plaintiff was not contributorily negligent, the judge awarded plaintiff damages in the amount of $1,703,864, itemized as follows:

                Medical expenses, future                             $   40,000
                Past loss of net earnings                                22,642
                Future loss of net earnings                             200,000
                Past loss of found                                        3,748
                Future loss of found                                     37,474
                Past physical pain and suffering                        200,000
                Future physical pain and suffering                      300,000
                Past mental anguish and loss of enjoyment of life       200,000
                Future mental anguish and loss of enjoyment of life     300,000
                Disability and disfigurement                            400,000
                  TOTAL                                              $1,703,864

On defendants' appeal, the intermediate court affirmed the judgment in most respects, but reduced the damages award by almost one-half. 605 So.2d 187. The court reviewed plaintiff's injuries and resulting disability and disfigurement, concluding:

Even though Youn's injuries are undoubtedly severe, and permanent in some respects, we find that in certain areas, the trial court abused its discretion (on the high side) in awarding damages of 1.4 million dollars. Accordingly, we turn to comparable cases to determine the highest amount the trial court could have reasonably awarded in this case.

605 So.2d at 202. The court then reviewed comparable cases and cut the awards of $500,000 for past and future physical pain and suffering to $214,200, the awards of $500,000 for past and future mental anguish and loss of enjoyment of life to $214,200, and the award of $400,000 for disability and disfigurement to $171,600. 1 The court further deleted the $44,222 award for past and future loss of found because of failure of proof.

On plaintiff's application, this court granted certiorari to review the appellate court's reduction of the awards. 609 So.2d 239.

In plaintiff's accident in May of 1989, his left thigh received the full force of the falling boom. After brief unconsciousness, he endured great pain while waiting an hour for the helicopter to transport him to the hospital. Dr. David Davis, the vascular surgeon who became the treating physician, found plaintiff's foot cool and lacking a pulse and his thigh twice the normal size. Plaintiff had no sensation below his knee and was justifiably fearful when told he might lose his leg.

During the emergency surgery, Dr. Davis found that plaintiff's femoral artery, the primary blood supply to his leg, had been completely severed. The artery had to be reconstructed by surgery requiring an incision from plaintiff's groin almost to his ankle. The incision required skin grafting sixteen inches long and six inches wide.

Recovery was painful because of rejuvenating of the nerves and return of sensation. Development of an infection which required debridement further complicated the recovery.

Dr. Martin Bell, the reconstructive surgeon who described the muscle injury "as if muscle tissue had been squeezed out like toothpaste," found progressive necrosis of the muscle tissue and eventually had to remove two-thirds of the quadriceps muscle of the thigh. Dr. Bell also performed four additional surgeries under general anesthesia in May and June. The first surgery involved exploration, irrigation and debriding of the wound and secondary closure of the wound with cadaver skin. The second, which involved an abscess of the thigh, included removal of the staples from the skin grafts and exploration, incision and drainage of the hematoma. The third removed the cadaver skin and regrafted with plaintiff's own skin taken from his back. The fourth was for ischemic necrosis of the quadriceps muscle, consisting of removal of staples and retentive sutures, regrating of the knee, and exploration and evacuation of the hematoma and necrotic muscles of the thigh.

During the five weeks of hospitalization and surgical procedures, morphine and demerol were administered to help plaintiff endure the pain. Plaintiff's distress was worsened by the fact that he was alone in a foreign country with demoralizing injuries to his leg.

Plaintiff returned to Korea after his release from the hospital, but his hamstring muscle ruptured, requiring a sixth surgery. The hamstring muscle is still not functioning normally.

At trial, Dr. Davis described plaintiff's leg as consisting of bone, artery and skin, with all the muscle gone. The lack of muscle protecting the artery which supplies blood to the leg subjects plaintiff to significant risk of further serious and life threatening injury. The reconstructive surgeon testified that plaintiff's massive tissue defect, with skin graft basically overlying the bone, has the potential to break down. The surgeon recommended additional surgery to graft muscle mass onto the thigh.

Plaintiff's disability is permanent and likely to worsen. He walks with a limp and cannot walk any great distance. He cannot perform manual labor or heavy lifting, cannot be on his feet for extended periods of time, cannot climb stairs, and cannot do repetitive bending, stooping, squatting or kneeling. Plaintiff's doctors have assigned a permanent disability rating of thirty to thirty-eight percent. He has significant limitation of motion of the leg and of the knee, as well as scarring of the donor sites on the back and the opposite leg. Dr. Davis opined that his condition renders remote his chance for gainful employment in Korea.

At the time of trial, plaintiff still had pain, swelling, numbness, and lack of feeling in the leg. His physical condition is likely to worsen because vascular grafts have a limited life span and are more prone to development of blockage and arteriosclerosis than normal arteries.

Plaintiff suffers anxiety and mental pain over his grotesque disfigurement. His wife was "disgusted" when she saw his disfigured leg, and emotional problems have developed over this concern. Plaintiff is also understandably disturbed emotionally about his inability to fulfill his family responsibilities and the probability of future worsening of his physical condition.

The trial judge thoughtfully weighed these facts in fixing the amount of the awards. In reasons for judgment, the judge stated:

These awards are more than deserved. The plaintiff's left leg is nothing more than a stick connecting his thigh bone to his ankle. The scarring demonstrated in the pictures represents a river of gruesome tattoos which encompass and circle the entire leg, from groin to foot. Plaintiff's leg is embroidered with an ugly snake-like appearance. The Court has never seen such a dismaying scene. The Court was most impressed with plaintiff's sincerity and obvious heartache over his condition. Plaintiff's leg is useless for anything other than support. Dr. Davis described the skin over the bone as a paper thin leg. Plaintiff is in constant jeopardy of any intrusion into the leg, cutting the vessel, and placing his life at risk. There are no muscles, meat, nor fatty tissue in plaintiff's left thigh. Plaintiff's leg swells constantly will never improve, and is expected to continue on a consistently downward course. Plaintiff will need future medical expenses because the vessels grafted in his leg will wear out over time. This will require at least two more surgeries based on plaintiff's life span. The Court does not see how plaintiff can accomplish any type of future work other than desk duty for which he appears both situationally and educationally unsuited. The plaintiff is totally and permanently disabled, can never return to any kind of physical activity, and must drag around with him, a constant reminder of this event. The impression from plaintiff's testimony, and viewing photographs of his existing condition, persuades the Court that plaintiff is a depressed, sorrowful, embarrassed, gentleman who had previously led an active, healthy, and vital existence. Plaintiff is described as a model patient who was most grateful to his American doctors for saving his life. Modern medicine can only do so much, however, and plaintiff's discussion of his wife's reaction when observing his leg upon his return home and to this date, persuades the Court that...

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