     Case: 12-31258        Document: 00512554952          Page: 1     Date Filed: 03/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                          FILED
                                        No. 12-31258                    March 10, 2014

                                                                        Lyle W. Cayce
LARRY NAQUIN, SR.,                                                           Clerk

                                                    Plaintiff-Appellee
v.

ELEVATING BOATS, L.L.C.,

                                                    Defendant-Appellant



                     Appeal from the United States District Court
                        for the Eastern District of Louisiana


Before DAVIS and JONES, Circuit Judges, and MILAZZO, District Judge.*
W. EUGENE DAVIS, Circuit Judge:
      Defendant-Appellant Elevating Boats, LLC (“EBI”) employed Plaintiff-
Appellee Larry Naquin, Sr. (“Naquin”) as a vessel repair supervisor at its
shipyard facility in Houma, Louisiana. After Naquin was severely injured in an
accident in the shipyard, a jury found that EBI was negligent, found that
Naquin qualified for seaman status, and awarded him money damages under the
Jones Act. Because the evidence supports the jury’s determination of seaman
status and liability, we AFFIRM the district court’s judgment on liability;
because the damages determination was erroneously based upon emotional



      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
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                                        No. 12-31258

anguish resulting from the death of a third party, we VACATE the damages
award and REMAND for a new trial on damages.
                                               I.
       EBI manufactures, operates, and maintains a fleet of specialty lift-boats1
and marine cranes out of several Louisiana port facilities. EBI employed Naquin
at its shipyard in Houma, Louisiana, where he had served as a vessel repair
supervisor since 2005. Naquin’s primary responsibility as a vessel repair
supervisor was the maintenance and repair of EBI’s fleet of lift-boat vessels.
Ordinarily, Naquin worked aboard the lift-boats while they were moored, jacked
up, or docked in EBI’s shipyard canal. Naquin’s spent approximately 70 percent
of his total time working aboard these vessels, including inspecting them for
repairs, cleaning them, painting them, replacing defective or damaged parts,
performing engine repairs, going on test runs, securing equipment, and
operating the vessel’s marine cranes and jack-up legs. Two to three times per
week, Naquin would do his work while the vessel was being moved to another
position in the canal. Occasionally, EBI dispatched Naquin to repair a vessel or
fill in as a vessel crane operator while the vessel was operating in open water.
Naquin spent the remaining 30 percent of his time working in the shipyard’s
fabrication shop or operating the shipyard’s LC-400 land-based crane.
       On November 17, 2009, Naquin was using the shipyard crane, which had
been designed and constructed by EBI, to relocate a test-block, a heavy iron
weight used to test the lifting capacity of cranes. Although the test-block was
well within the LC-400’s rated capacity, the crane suddenly failed, causing the
boom and crane house to separate from the crane pedestal. As the crane toppled



       1
          A lift-boat is a self-propelled, self-elevating, offshore supply vessel. Although it
functions and navigates much like any other supply vessel, a typical lift-boat is equipped with
three column-like legs that can be quickly lowered to the seafloor to raise the vessel out of the
water and stabilize it for marine operations.

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                                     No. 12-31258

over onto a nearby building, Naquin was able to jump from the crane house.
However, he did not avoid injury; he sustained a broken left foot, a severely
broken right foot, and a lower abdominal hernia. Naquin’s cousin’s husband, who
happened to be another EBI employee, was working in the building and was
crushed by the crane and killed. Naquin learned of his death while in the
hospital after the accident, either later that same day or the next day.2
       Following the accident, Naquin underwent one surgery for his hernia and
one surgery to repair his right foot. Because Naquin’s right foot was fractured
in several places, a plate and screws were required to repair the damage. Despite
Naquin’s reparative surgeries and 70 physical therapy sessions, he was not able
to return to physical work. EBI subsequently offered Naquin a “desk job” at the
shipyard, but he declined, asserting that he was too emotionally upset to return
to work. Although Naquin’s medical treatment had ceased, at the time of trial,
he continued to complain of chronic pain in his feet, difficulty walking, and
chronic depression.
       In November 2010, Naquin filed the instant Jones Act suit, alleging that
EBI was negligent in the construction and/or maintenance of the LC-400
shipyard crane. After a three-day trial, a jury concluded that Naquin was a
Jones Act seaman and that EBI’s negligence caused his injury. The jury awarded
Naquin $1,000,000 for past and future physical pain and suffering, $1,000,000
for past and future mental pain and suffering, and $400,000 for future lost
wages. EBI immediately filed motions requesting a judgment as a matter of law,
a new trial, a new trial on damages, and remittitur. The district court denied all
of EBI’s motions, and EBI now appeals.



       2
        During his testimony on direct examination, Naquin stated that paramedics told him
immediately after the accident that the workers in the building were “doing all right.” He
continued to say that he thought the information regarding their injuries, specifically the
death of his cousin’s husband, was kept from him “for [his] own good.”

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                                        No. 12-31258

                                               II.
      “The determination of whether an injured worker is a seaman under the
Jones Act is a mixed question of law and fact and it is usually inappropriate to
take the question from the jury.”3 Accordingly, we will not disturb a jury’s
finding of seaman status unless the facts and the law do not “reasonably
support” its conclusion.4
      Conversely, the appropriate standard of review to test a jury’s factual
findings is whether there is “reasonable evidentiary basis for the jury’s verdict.”5
We therefore review the evidence “in the light most favorable to the verdict.
‘Only when there is a complete absence of probative facts to support the
conclusion reached does a reversible error appear.’”6 As always, conclusions of
law are reviewed de novo.
                                               III.
      On appeal, EBI challenges multiple legal conclusions and factual
determinations of the district court. We now address, in order, EBI’s contentions
(1) that Naquin was not a Jones Act seaman, (2) that the district court provided
the jury with erroneous seaman status instructions, (3) that the evidence is
insufficient to establish EBI’s negligence, and (4) that the district court erred by
admitting evidence of Naquin’s relative’s death to support Naquin’s emotional
damages claim.
                                               A.
      EBI first argues that the jury erred in its determination that Naquin was
a seaman entitled to Jones Act coverage. Specifically, EBI argues that because


      3
          Becker v. Tidewater, Inc., 335 F.3d 376, 386 (5th Cir. 2003).
      4
          See id.
      5
          See Loehr v. Offshore Logisitics, Inc., 691 F.2d 758, 760 (5th Cir. 1982).
      6
          Huffman v. Union Pacific R.R., 675 F.3d 412, 425 (5th Cir. 2012) (citation omitted).

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                                         No. 12-31258

Naquin is a land-based ship-repairman, he is not connected to vessels in
navigation and cannot qualify as a seaman.
       In support of its argument that Naquin is not a seaman, EBI primarily
argues that Naquin is a land-based repairman who performs classic land-based
harbor worker duties. As EBI points out, the Jones Act’s land-based worker
counterpart, the Longshore and Harbor Worker’s Compensation Act (“LHWCA”)
expressly identifies “ship repairm[e]n” as subject to its coverage.7 Because the
LHWCA and Jones Act are mutually exclusive compensation schemes, EBI
argues, Naquin’s coverage under the LHWCA precludes his coverage under the
Jones Act.
       A few years ago we agreed with EBI’s position.8 However, the Supreme
Court rejected this position and overruled our decision in Pizzotolo in Southwest
Marine, Inc. v. Gizoni.9 There, the Court clarified that the Jones Act covers any
worker who qualifies as a “seaman,” without regard to whether a worker may
also qualify for coverage under the LHWCA.10 This is true even in the case where
a worker’s job is specifically identified for coverage under the LHWCA.11 Thus,
the fact that Naquin performed ship repair duties (identified as covered by the
LHWCA) cannot distract us from the threshold inquiry: whether Naquin first
qualifies as a seaman.12



       7
            See 33 U.S.C. § 902(3).
       8
           See Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977, 982–84 (5th Cir. 1987).
       9
            502 U.S. 81, 87–88 (1991).
       10
            See id.
       11
            See In re Endeavor Marine Inc., 234 F.3d 287, 291 (5th Cir. 2000).
       12
          See id. (“[E]ven a ship repairman (which is traditional longshoreman work and is one
of the enumerated occupations under the LHWCA) may qualify for seaman status if he has the
requisite employment-related connection to the vessel.”).

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                                          No. 12-31258

         Though the Jones Act does not define “seaman,” Congress has elsewhere
defined it as the “master or member of a crew of any vessel.”13 To determine if
a worker is a seaman or member of a vessel’s crew, the Supreme Court has
established a two-prong test: “First, ‘an employee’s duties must contribute to the
function of the vessel or to the accomplishment of its mission.’ Second, ‘a seaman
must have a connection to a vessel in navigation (or to an identifiable group of
such vessels) that is substantial in terms of both duration and nature.’”14
Importantly, an individual can still qualify for seaman status even if he divides
his time among multiple vessels under common ownership or control.15 The
relevant question is whether, in the course of his current job, he substantially
contributes to the vessels’ functions and maintains a substantial connection with
the fleet.16
         “[S]atisfying the first prong of the [seaman] test is relatively easy: the
claimant need only show that he does the ship’s work.”17 Under this standard,
there can be little doubt that Naquin did the ship’s work and contributed to the
function of EBI’s vessels. As EBI concedes, Naquin spent the majority of his time
repairing, cleaning, painting, and maintaining the 26–30 lift-boat vessels that
EBI operated out of the Houma shipyard. Moreover, the remainder of Naquin’s
hours aboard EBI lift-boats was spent operating the marine crane and securing




         13
              See Chandris v. Latsis, 515 U.S. 347, 355–56 (1995); 33 U.S.C. § 902(3)(G).
         14
              Becker, 335 F.3d at 387 (quoting Chandris, 515 U.S. at 368).
         15
              See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 558 (1997).
         16
              See id.; Bertrand v. Int’l Mooring & Marine, Inc., 700 F.2d 240, 245–46 (5th Cir.
1983).
         17
              Becker, 335 F.3d at 387–88 (internal quotation marks and citation omitted).

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                                        No. 12-31258

the deck for voyage. Equipment operators and mechanics performing such tasks
are necessary to the function and operation of any vessel.18
       Turning to the second prong of the seaman test, Naquin is only eligible for
Jones Act coverage if his connection to the EBI lift-boat fleet is “substantial in
terms of both duration and nature.”19 As the Supreme Court has explained, the
fundamental purpose of the substantial connection requirement is “to separate
the sea-based maritime employees who are entitled to Jones Act protection from
those land-based workers who have only a transitory or sporadic connection to
a vessel in navigation, and therefore whose employment does not regularly
expose them to the perils of the sea.”20 Thus, a worker seeking seaman status
must separately demonstrate that his connection to a vessel or fleet of vessels
is, temporally, more than fleeting, and, substantively, more than incidental.21
These inquiries are not always distinct, but are interrelated elements of the
same substantial connection requirement.22
       Weighing in on the durational aspect of the vessel-connection requirement,
the Supreme Court has endorsed this Court’s general rule of thumb:“A worker
who spends less than about 30 percent of his time in the service of a vessel in




       18
           See, e.g., id. at 388. See also Endeavor Marine Inc., 234 F.3d at 291 (finding barge
crane operator to be a seaman, because “even a ship repairman (which is traditional
longshoreman work and is one of the enumerated occupations under the LHWCA) may qualify
for seaman status if he has the requisite employment-related connection to the vessel.”);
Boatel, Inc. v. Delamore, 379 F.2d 850, 853–54, 859 (5th Cir. 1967) (finding diesel “motorman”
to be a seaman); and Braniff v. Jackson Ave.-Gretna Ferry, Inc., 280 F.2d 523 (5th Cir. 1960)
(finding ferry’s maintenance superintendent to be a seaman).
       19
            See Chandris, 515 U.S. at 368.
       20
            Id.
       21
            See id. at 369–71.
       22
            See id.

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navigation should not qualify as a seaman under the Jones Act.”23 “Indeed,
application of the 30 percent test is the very means by which a substantial
temporal connection is determined, regardless whether a single vessel or group
of vessels is at issue.”24 In the instant case, Naquin spent approximately 70
percent of his time repairing and operating cranes and other equipment on EBI’s
fleet of lift-boats. The evidence therefore clearly supported the jury’s implicit
finding that Naquin had a connection to the EBI fleet that was substantial in
terms of duration.25
      Although vessel repair is classic seaman’s work, EBI argues that Naquin
does not qualify as a seaman because his duties do not “regularly expose[ him]
to the perils of the sea.”26 The purpose of this requirement is to distinguish
between land-based workers who do not face maritime dangers and the sea-
based workers who do face those dangers.27
      To support its argument that Naquin was not sufficiently exposed to
maritime perils to merit seaman status, EBI emphasizes that Naquin was rarely
required to spend the night aboard a vessel, that the vessels he worked upon
were ordinarily docked, and that he almost never ventured beyond the
immediate canal area or onto the open sea. However, courts have consistently
rejected the categorical assertion that workers who spend their time aboard
vessels near the shore do not face maritime perils. While these near-shore
workers may face fewer risks, they still remain exposed to the perils of a



      23
           See id. at 371.
      24
           Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 376 (5th Cir. 2011).
      25
           See Endeavor Marine, 234 F.3d at 291.
      26
           See id. at 292.
      27
           See Papai, 520 U.S. at 560.

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                                         No. 12-31258

maritime work environment.28 As the Supreme Court explained in Stewart v.
Dutra:
       [I]t seems a stretch of the imagination to class the deck hands of a
       mud dredge in the quiet waters of a Potomac creek with the bold
       and skillful mariners who breast the angry waves of the Atlantic;
       but such and so far-reaching are the principles which underlie the
       jurisdiction of the courts of admiralty that they adapt themselves to
       all the new kinds of property and new sets of operatives and new
       conditions which are brought into existence in the progress of the
       world.29

       This court’s decision in Endeavor Marine is particularly instructive. There,
we considered whether a derrick barge crane operator had the requisite
connection to a vessel that was substantial in terms of nature.30 The crane
operator worked exclusively on a stationary crane barge used to load and unload
cargo at a Mississippi River dock facility.31 He was rarely required to board a
moving vessel and he never traveled beyond the immediate dock area.32
Moreover, his primary job was to operate the crane on the barge and to repair
and maintain the equipment on the barge.33 The district court found the
employee’s connection to the barge was not substantial in nature because “it did
not take him to sea. His work brought him aboard the barge only after the vessel



       28
         See Stewart v. Dutra Constr. Co., 543 U.S. 481, 497 (2005); Endeavor Marine, 234
F.3d at 291. See also Grab v. Boh Bros. Constr. Co., L.L.C., 506 F. App’x 271, 276 (5th Cir.
2013) (unpublished) (“[T]he fact that [the injured employee] returned home daily did not
remove him from his exposure to cognizable dangers of the sea.”).
       29
            543 U.S. at 497 (internal citation omitted).
       30
            234 F.3d 287.
       31
            Id. at 289.
       32
            Id.
       33
            Id. at 292 n.4.

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                                        No. 12-31258

was moored or in the process of mooring.”34 We reversed. Despite the fact that
the crane operator was not literally “taken to sea” and did not face some of the
maritime dangers faced by seamen on moving vessels in the open sea, we still
concluded that he was regularly exposed to the perils of the sea and qualified as
a seaman.35
       We see no basis to distinguish Endeavor Marine from the instant case.36
Like the crane operator in that case, Naquin’s primary job duties were
performed doing the ship’s work on vessels docked or at anchor in navigable
water. In doing this work, Naquin faced precisely the same type and degree of
maritime perils faced by the port-bound derrick barge crane operator in
Endeavor Marine. Additionally, we have dozens of cases finding oilfield workers
and other “brown-water” workers on drilling barges and other vessels qualified
as seamen even though they spent all their work time on these vessels
submerged in quiet inland canals and waterways.37 Accordingly, we conclude


       34
            Id. at 291.
       35
            Id. at 292.
       36
          In Endeavor Marine the employee suffered his injury while working aboard a vessel,
whereas Naquin was injured as he performed land-based duties. This distinction is not
relevant to our analysis of whether Naquin qualifies as a Jones Act seaman because that
inquiry is status-based, and does not focus solely upon the employee’s activity at the time of
the injury. See Chandris, 515 U.S. at 361 (“It is therefore well settled . . . that the Jones Act
inquiry is fundamentally status based: Land-based maritime workers do not become seamen
because they happen to be working on board a vessel when they are injured, and seamen do
not lose Jones Act protection when the course of their service to a vessel [or group of vessels]
takes them ashore.”).
       37
          See, e.g., Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966) (employee
performed maintenance work on submersible drilling barge in a navigable canal); Colomb v.
Texaco, Inc., 736 F.2d 218 (5th Cir. 1984) (employee worked aboard inland submersible barge
at the end of a canal off inland waters which were eight feet deep); Landry v. Amoco
Production Co., 595 F.2d 1070 (5th Cir. 1979) (employee was a roustabout who worked aboard
barges in inland waters and marshes); Grab v. Boh Bros. Const. Co., LLC, 506 F. App’x 271
(5th Cir. 2013) (per curiam) (unpublished) (employees worked aboard a crane barge in Lake
Ponchartrain.

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                                      No. 12-31258

that Naquin’s connection to the EBI vessel fleet was substantial in terms of
nature.
       The record demonstrates that Naquin contributes to the function of a
discrete fleet of vessels and has a connection with the fleet that is substantial in
terms of both duration and nature. We therefore hold that the evidence supports
the jury’s finding that Naquin is a seaman.38
                                             B.
       EBI next argues that the district court abused its discretion by erroneously
instructing the jury on the issue of seaman status. We apply a two-part test in
considering a challenge to the district court’s jury instructions: (1) First, the
party challenging the instructions must “demonstrate that the charge as a whole
creates substantial and ineradicable doubt whether the jury has been properly
guided in its deliberations; and (2) Second, even where a jury instruction was
erroneous, “we will not reverse if we determine, based upon the entire record,
that the challenged instruction could not have affected the outcome of the
case.”39 EBI levels a very specific complaint against the district court’s
instruction: That the district court erred by presenting the two prongs of the
seaman test in reverse order, by “garbling” the separate requirements of the test,
and failing to emphasize that a seaman’s connection to vessels must be
substantial in terms of nature.
       In the instant case, the district court charged the jury as follows:
       Under the governing law the plaintiff is a seaman if he proves by a
       preponderance of the evidence the following: A, or first, that he has
       a connection to a vessel in navigation, or to an identifiable group of


       38
          Because the jury’s seaman status finding was supported by the evidence, it follows
that the district court did not err in denying EBI’s motions for summary judgment, judgment
as a matter of law, or a new trial. See FED. R. CIV. PROC. 56(a).
       39
          Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 293 (5th Cir. 2007) (internal
citation omitted).

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      vessels, that is substantial in terms of both its duration and nature,
      and secondly that his duty contributed to the function of a vessel or
      identifiable group of vessels, or to the accomplishment of its mission.

      Despite a reversal of the test’s normal organization, the above instruction
is wholly consistent with our own articulation of the seaman test.40 After
reviewing the relevant jury charge in its entirety, we do not agree that the
charge was confusing or misleading. Quite the opposite, a careful review of the
district court’s explanation reveals a careful attempt to explain a difficult-to-
define concept to a jury of laymen. The court’s explanation points out that
Naquin’s connection to the EBI fleet is only substantial if it was “an actual,
regular connection”; that the connection must be “more than a temporary or
occasional connection”; and that the jury should “focus on the nature and
location of [Naquin’s] work.” In fact, the court’s instruction mirrors the Supreme
Court’s explanation of the seaman status test in Chandris v. Latsis.41
      Because the district court’s seaman status instruction was clear and
consistent with the usual articulation, we conclude that the district court did not
err in its instruction on the issue of seaman status.
                                               C.
      EBI next argues that the evidence is insufficient to support the jury’s
finding of negligence. Specifically, EBI contends that it cannot be negligent
because there is no evidence indicating that EBI caused or could have foreseen
the accident.
      The law of employer negligence is clear: Every employer has a duty to
provide its employees with a reasonably safe work environment and work



      40
           See, e.g., Becker, 335 F.3d at 387–88.
      41
           515 U.S. at 370–71.


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                                            No. 12-31258

equipment.42 Because EBI designed, constructed, operated, and maintained the
defective LC-400 crane which injured Naquin, EBI is liable if its negligent
performance of any of those activities caused Naquin’s injuries.
       In this case, the testimony at trial established that the crane, which was
manufactured by EBI, fell when the weld which bound the crane to its base
failed. EBI’s witness testified that the test block being moved by the crane was
well within the rated capacity of the LC-400 crane. Although Naquin was unable
to prove precisely why the weld failed, it is undisputed that EBI was the party
who was responsible for the design of the crane and the integrity of the weld and
who could have implemented more stringent weld safety standards. Relying
upon this circumstantial evidence, the jury determined that EBI was negligent.
       On appeal, EBI argues that the exclusive reliance upon circumstantial
evidence in this case is essentially a dependence on the doctrine of res ipsa
loquitur.43 Because res ipsa was never specifically pled or asserted, EBI argues,
the argument has been waived and Naquin cannot rely exclusively on the fact
that EBI was responsible for the weld to establish its negligence.
       This court considered this precise argument on nearly identical facts in
Watz v. Zapata Off-Shore Co.44 Sitting in admiralty, the Watz court considered
whether a chain manufacturer had been negligent when a defective weld in the
chain caused it to snap, injuring a shipyard worker below.45 At a bench trial, the
district court inferred from the defective weld that chain manufacturer was


       42
            See Strong v. B.P. Exploration & Prod., Inc., 440 F.3d 665, 669 (5th Cir. 2006).
       43
          Under res ipsa loquitur, a jury is permitted to infer negligence on the part of the one
who exercised control over an item where that item has caused the damage and other plausible
explanations have been reasonably ruled out. See Brown v. Olin Chem. Corp., 231 F.3d 197
(5th Cir. 2000).
       44
            431 F.2d 100 (5th Cir. 1970).
       45
            Id. at 103.

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negligent.46 On appeal to this court, the chain manufacturer argued that the
district court could not rely on what amounted to a theory of res ipsa when no
such theory had been pled.47 However, we rejected the chain manufacturer’s
contention, stating:
       Certainly [the plaintiff] bore the burden of proof to show Campbell’s
       [(the chain manufacturer)] negligence. But once it was proved that
       a defective weld had occurred during the manufacture of the chain
       by Campbell, we believe that the district court sitting as a finder of
       fact could reasonably infer negligence from that circumstantial
       evidence. Campbell objects that the pleadings and evidence did not
       specifically raise the doctrine of res ipsa loquitur and the district
       court did not refer to it. The evidence credibly established that
       responsible chain manufacturers attempt to avoid defective welds
       in the knowledge that they are dangerous. The finder of fact could
       reasonably infer that a defective weld would ordinarily not occur in
       the absence of negligence. We see no reason to invoke the Latin
       phrase here. We simply apply a rule of circumstantial evidence, not
       changing the burden of proof or casting presumptions against the
       defendant.48
       There is no basis on which to distinguish this case from the holding of
Watz. EBI was the only party responsible for welding the LC-400 crane to its
base, a weld which was indisputably defective and the direct cause of Naquin’s
injuries. We therefore hold that this evidence, though circumstantial, is
sufficient to support the jury’s finding of negligence.




       46
            Id. at 119.
       47
            Id.
       48
          Id. EBI points out that its practice was to hire a third party to inspect and test crane
welds, but that the records documenting who had inspected the instant crane had been
destroyed by Hurricane Katrina. However, this does not distinguish the instant case from
Watz, where the chain manufacturer similarly insisted that it had conducted tests on the
defective chain but had destroyed the documentation in the ordinary course of business.

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                                    No. 12-31258

                                         D.
      EBI next argues that the district court abused its discretion when it
admitted evidence of the death of Naquin’s cousin’s husband (“the relative”)
because it found such evidence to be relevant to Naquin’s claim for emotional
damages. The relative was killed when the collapsing crane crushed part of the
building in which he was working. Arguing that the relative’s death was
irrelevant to any of the issues at the trial, EBI filed a motion in limine to exclude
any references to the death as prejudicial. The district court denied the motion,
concluding that though potentially prejudicial, the evidence was relevant to
Naquin’s claims for emotional damages. At the trial, much of Naquin’s claim for
his emotional damages focused on his relative’s death, and the jury ultimately
awarded him $1,000,000 for past and future emotional suffering.
      Because the death of Naquin’s relative is unquestionably irrelevant to the
issues of seaman status and EBI negligence, the only issue to which it might
have been relevant is Naquin’s emotional damages. However, the Jones Act does
not indiscriminately permit compensation for emotional damages resulting from
the death of another person.
      In Consolidated Rail Corp. v. Gottshall,49 the Supreme Court was called
upon to determine the extent to which an employer is liable for emotional
damages under the Federal Employers’ Liability Act (“FELA”).50 The negligence
provision of FELA is expressly incorporated into the Jones Act. Specifically, the
Gottshall Court considered whether an employee could recover for emotional
distress from his employer after witnessing a co-worker die due to the employer’s
negligence.51 Recognizing that the emotional harm caused by an accident is


      49
           512 U.S. 532 (1994).
      50
           45 U.S.C. §§ 51–60.
      51
           Id. at 536.

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                                         No. 12-31258

potentially limitless, the Court observed the need for limits on those who can
recover such damages.52 The Court then surveyed the common law on the issue,
identifying three major limiting tests for evaluating claims of negligent infliction
of emotional distress: (1) the “physical impact” test, which only permits recovery
for emotional damages if the plaintiff sustains a physical impact; (2) the “zone
of danger” test, which permits recovery if the plaintiff was physically impacted
or within the zone of potential impact; and (3) the “relative bystander” test,
which extends recovery to those in the zone of danger as well as close relatives
of a victim who are physically near and who observe the injury.53 Concluding
that “FELA’s central focus [is] on physical perils,” the Court also recognized that
“a near miss may be as frightening as a direct hit.”54 Therefore, the Court
reasoned, the appropriate test for awarding emotional damages under
FELA—and by extension, the Jones Act—is whether the plaintiff was in the
“zone of danger.”55
      Turning to the instant case, there is no question that Naquin was in the
zone of danger and may therefore claim damages for his emotional harm.
However, we are still left with the question of whether Naquin may assert a
claim for emotional harm arising from the injury to his relative. In other words,
Naquin contends that a Jones Act plaintiff, once physically injured and entitled
to emotional damages, is entitled to the full spectrum of emotional damages,
including those arising from an injury to someone else.
      Despite the simplistic appeal of Naquin’s argument, there is no caselaw
or reasoning to support it. Instead, the Supreme Court’s discussion of emotional


      52
           Id. at 546.
      53
           Id. at 547–49.
      54
           Id. at 547, 555 (internal citation omitted).
      55
           See id. at 555.

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                                           No. 12-31258
damages in Gottshall emphasizes the limited scope of damages available to
individuals within the zone of danger: the emotional harm suffered from being
physically injured or the emotional harm suffered from almost being physically
injured.56 As described by the Supreme Court, the zone of danger test allows a
Jones Act plaintiff “to recover for emotional injury caused by fear of physical
injury to himself.”57 More tellingly, the Gottshall Court explicitly rejected the
relative bystander test, which would have permitted certain relatives to recover
for emotional damages caused by witnessing an injury to someone else.58 As our
own court has previously recognized, it would be a “major departure from the
existing jurisprudence” to “allow recovery for injuries resulting not from physical
trauma, or the fear of physical trauma, to the plaintiff but from witnessing a
‘bad sight,’ i.e., harm to another.”59
       Several other considerations bolster this conclusion. If multiple people
witness an injury to someone else, it would be arbitrary to award emotional
damages for seeing that person’s injury only to those people who also happened
to suffer an injury at the same time. Moreover, the Jones Act only extends an
action to recover for the death of a seaman to his immediate family.60 It would
thus be inconsistent with the Jones Act’s wrongful death provision to permit
anyone else to recover for the negligent death of a coworker.




       56
            Id. at 555–56.
       57
            Id. at 556 (emphasis added).
       58
           Even if the Supreme Court had adopted the “relative bystander” test, that test
ordinarily requires a relationship closer than that of victim’s spouse’s cousin. See, e.g., LA. CIV.
CODE art. 2315.6 (limiting bystander emotional damage claims to a spouse, child, grandchild,
parent, sibling, or grandparent).
       59
            See Plaisance v. Texaco, Inc., 966 F.2d 166, 169 (5th Cir. 1992) (en banc).
       60
            See 45 U.S.C. § 51.

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                                            No. 12-31258
       This conclusion is also most consistent with this court’s decision in Gaston
v. Flowers Transp.61 In that case, we rejected an emotional damage claim by a
Jones Act plaintiff who watched his half-brother get crushed to death between
two vessels.62 Although the Gaston plaintiff had not been physically injured, we
nonetheless distinguished between plaintiffs who suffer emotional harm from an
event “directly affecting him” and plaintiffs who suffer harm from “witnessing
the death of another.”63 We finally concluded, “whatever merit allowing recovery
for purely emotional injury may have or may lack, we see none in allowing mere
crewmen-bystanders to recover for witnessing the misfortune of another.”64
       The Supreme Court’s decision in Gottshall and our own reasoning in
similar cases compel us to conclude that emotional damages resulting purely
from another person’s injury, and not a fear of injury to one’s self, are not
compensable under the Jones Act. Such is the case even when the plaintiff has
also been injured. To award damages for observing a “bad sight,” even one which
involves a family member, would contravene the zone of danger test’s intent to
compensate for physical dangers. Accordingly, we hold that Naquin’s emotional
damages arising from the death of his relative are not compensable under the
Jones Act and the evidence regarding those damages should have been excluded
from the trial.
       Because we cannot discern to what extent Naquin’s $1,000,000 award for
emotional suffering was based upon the non-compensable harm caused by the



       61
            866 F.2d 816 (5th Cir. 1989).
       62
            Id. at 819–21.
       63
            Id. at 819.
       64
          Id. at 821. See also Barker v. Hercules Offshore, Inc., 713 F.3d 208, 225 (5th Cir.
2013) (finding that, because platform worker who was present when co-worker fell to his death
was not “in immediate risk of physical harm,” he was not entitled to emotional damages).

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                                        No. 12-31258
relative’s death, the emotional portion of his damages is tainted.65 Moreover,
most reported decisions do not distinguish between physical and emotional pain
and suffering awards,66 so we cannot utilize our usual comparative framework
for evaluating the reasonableness of Naquin’s physical damage award in
isolation.67 The record also reveals that counsel for Naquin in his closing
argument leaned heavily on the emotional damages Naquin suffered as a result




       65
           EBI also complains that the jury erred by awarding mental anguish damages to
Naquin for his depression despite the lack of corroborating medical testimony. “Any award
for emotional injury greater than nominal damages must be supported by evidence of the
character and severity of the injury to the plaintiff's emotional well-being.” Salinas v. O’Neill,
286 F.3d 827, 830 (5th Cir. 2002). Nonetheless, we have also previously recognized our
unwillingness to “hold that medical evidence or corroborating testimony is always required for
an award of mental anguish damages.” See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046
(5th Cir. 1998). Instead, where a plaintiff’s mental anguish testimony is corroborated by other
witnesses, circumstances, and facts, we do not necessarily require expert medical testimony.
See id. Although no expert testified concerning Naquin’s depression, Naquin’s own testimony
regarding his mental anguish was supported by the testimony of his wife, his visits to doctors
and social workers, and his prescription use of an anti-depressant drug following the accident.
       66
          See, e.g., Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1427 (5th Cir. 1988);
Bernard v. United States, 794 F. Supp. 608, 611 (E.D. La. 1991); Aucoin v. State through Dep’t
of Transp. and Dev., 712 So.2d 62 (La. 1998).
       67
         Under this circuit’s “maximum recovery rule,” we will uphold a jury award if there
is a damage award in at least one “factually similar case from the relevant jurisdiction” that,
when increased by 50%, equals or exceeds the challenged jury award. See Moore v. M/V
ANGELA, 353 F.3d 376, 384 (5th Cir. 2003).

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                                       No. 12-31258
of his relative’s death.68 Because Naquin’s lost wages claim is also founded
partially upon his non-compensable emotional injury, it too is tainted.69
       Even putting these concerns aside, serious practical problems would be
presented at trial if we were to save some elements of the damage award and
retry only other elements of damage. “[W]here, as here, the jury’s findings on
questions relating to liability were based on sufficient evidence and made in
accordance with law, it [i]s proper to order a new trial only as to damages.”70 We
therefore retain the jury’s liability finding but order a new trial on damages.71

       68
          During his closing argument, counsel for Naquin said the following regarding
Naquin’s emotional damages due to the death of his relative:
      . . . He has tremendous issues because of [the accident]. I don’t know that you
      could write anything more horrific than killing one of your relatives in an
      accident. You know, I hope Larry gets a lot out of that.
      I think when you assign a value to that, I think one thing you’re signalling (sic)
      to him is whether you’ve understood it or not. I don’t know how you put a value
      on a person’s well-being mentally. I don’t know how you sit down and try to get
      your head around someone who is actually going to kill themselves. That is
      extremely hard.
      I would suggest one comparison again to his past wages and future wages. If
      that little $550,000 is what his pocketbook is hurt, then what can you imagine
      his mind has been through and his experiences have been hurt. I would suggest,
      again, two to three times that is very fair for this man. Some of you may feel
      that’s a low figure. You may think who is this lawyer who is trivializing what
      this man has been through. That’s up for you all to decide.
       69
           Naquin’s claim for future lost wages stems solely from his inability to accept EBI’s
offer of sedentary work due to his continuing emotional distress. However, the lost wage
consequences of Naquin’s emotional distress are only compensable to the extent his distress
is compensable. Because a substantial portion of his emotional damages are based upon non-
compensable emotional distress arising from the death of his relative, future wages lost
because of that non-compensable emotional distress are likewise non-compensable.
        As the issue has been raised by EBI, we separately note the proper work-life expectancy
basis for calculating future lost wages on remand: “It may be shown by evidence that a
particular person, by virtue of his health or occupation or other factors, is likely to live and
work a longer, or shorter, period than the average. Absent such evidence, however,
computations should be based on the statistical average.” Madore v. Ingram Tank Ships, Inc.,
732 F.2d 475, 478 (5th Cir. 1984).
       70
            Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir. 1980).
       71
          Because we remand the case for a new trial on damages, we need not consider EBI’s
final point of error, which alleges that the jury’s emotional damage award was tainted by an

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                                     No. 12-31258
                                           IV.
      For the reasons stated above, we AFFIRM the judgment of the district
court as it relates to liability, but VACATE the judgment of the district court as
it relates to damages and REMAND for proceedings consistent with this opinion.


AFFIRMED in part, VACATED and REMANDED in part.




inadvertent discussion of previously-excluded testimony.

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                               No. 12-31258
JONES, Circuit Judge, dissenting.


      I concur in all of this good opinion except the decision affirming
Naquin’s status as a seaman. On this issue, I respectfully disagree.

                           I. Seaman Status Elements

      To be a seaman, Naquin must satisfy the two-prong test established in
Chandris v. Latsis: (1) his duties must contribute to the function of the vessel
or to the accomplishment of its mission; and (2) he must have a connection to
a vessel in navigation (or to an identifiable group of such vessels) that is
substantial in terms of both duration and nature.         Chandris v. Latsis,
515 U.S. 347, 368 (1997). I agree with the majority that Naquin passes the
first prong of the Chandris test.    In my view, however, Naquin does not
satisfy the duration or nature components of Chandris’s second prong.
Indeed, if a jury could hold Naquin is a seaman, then it could so conclude as
to any shore-based worker who maintained EBI’s on-board computers or went
aboard the lift-boats to gas them up before they left the repair yard.
Chandris and Sw. Marine, Inc. v. Gizoni, 502 U.S. 81 (1991), broadly commit
these cases to the jury, but they do not prevent courts from ever
distinguishing seamen from harbor workers as a matter of law.

                            II. Duration Component
      As a general rule, the duration component of Chandris’s second prong is
satisfied when an employee spends 30 percent or more of his time in service of
a “vessel in navigation.” Chandris, 515 U.S. at 371. (The Supreme Court
adopted this circuit’s opinion in Barrett v. Chevron, U.S.A., 781 F.2d 1067
(5th Cir. 1986) (en banc) on this rule of thumb.) But the Court noted,

      This figure [30%] serves as no more than a guideline . . . and
      departure from it will certainly be justified in appropriate
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                                     No. 12-31258

       cases . . . . And where undisputed facts reveal that a maritime
       worker has a clearly inadequate temporal connection to vessels in
       navigation, the court may take the question from the jury . . . .

Chandris, 515 U.S. at 371.

       The sole issue here is whether Naquin’s work as a repair supervisor on
vessels docked in a canal or in drydock counts as service of a vessel in
navigation.    Naquin spent 70 percent of his time employed in this capacity.1
In denying EBI’s motion for summary judgment, the district court took a
statement from Chandris out of context to reach a conclusion that runs
contrary to the “fundamental distinction” that Chandris recognized between
land-based and sea-based maritime workers. Cf. id. at 358. According to the
district court, Naquin’s land-based repair time was connected to a vessel in
navigation because, as Chandris noted, a vessel remains in navigation even
when it is temporarily moored or docked for repairs. Naquin v. Elevating
Boats, LLC, 842 F. Supp. 2d 1008, 1017 (E.D. La. 2012) (citing Chandris,
515 U.S. at 373-74). The majority concludes without further discussion that
Naquin’s time repairing the lift-boat cranes satisfies the duration component.

       In my view, this conclusion is irreconcilable with Chandris’s “basic
point,” which is that land-based employees like Naquin are not seamen.
Chandris, 515 U.S. at 370 (“The Jones Act remedy is reserved for sea-based
maritime employees whose work regularly exposes them [to maritime peril]” .
. . . [T]he ultimate inquiry is whether the worker in question is a member of
the vessel’s crew or simply a land-based employee.”) (emphasis added); see
also Heise v. Fishing Co. of Alaska, 79 F.3d 903, 906 (9th Cir. 1996) (holding
that a land-based repairman assigned to perform routine, off-season
       1
         The rest of Naquin’s hours were not connected with a vessel in navigation. He
divided nearly all of his remaining time between the fabrication shop and operating a land-
based crane in the shipyard.
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                                     No. 12-31258

maintenance on a fishing vessel did not satisfy Chandris’s first prong where
the “first basic principle” behind Chandris’s definition of seaman is that the
term does “not include land-based workers”).                Moreover, the passage in
Chandris regarding temporarily moored or docked vessels is inapplicable to
the present facts. Unlike the plaintiff in Chandris, Naquin did not sail on a
ship that was temporarily docked. He worked almost exclusively on vessels
that were moored, jacked up, or docked in the shipyard undergoing repair,
and found himself on a navigable vessel only on rare occasions.2 To allow
Naquin to accrue the 30 percent minimum temporal connection while solely
working on docked vessels under repair essentially removes the duration
component for other land-based repairmen who are fortunate enough to work
on vessels that do not require long-term repairs. According to the majority,
these repairmen could always claim that they spent their time working on
vessels “in navigation” despite the fact they do all of their work on or tied to
land, safely removed from maritime dangers. To me, this outcome defies logic
and disregards the overarching purpose of the Jones Act as stated in
Chandris.

                                 III. Nature Component

       I also disagree with the majority’s analysis of the nature component of
Chandris’s second prong. The majority characterizes the facts that support
the conclusion that Naquin spent all of his time dockside as a “categorical
assertion” that does not demonstrate that Naquin was protected from
maritime perils. But in the next sentence, the majority categorically asserts
that near-shore workers “still remain exposed to the perils of the sea,” citing
no facts showing that Naquin, who spent nearly all of his time on boats

       2
         Naquin testified that he was aboard on a moving vessel less than one percent of his
time at work.
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                                 No. 12-31258

moored to a dock, faced any maritime perils in the ordinary course of his
duties. This “moving right along” approach to the particulars of Naquin’s
employment runs contrary to the fact-specific inquiry that the Supreme Court
has recommended for determining seaman status. See, e.g., McDermott Int’l,
Inc. v. Wilander, 498 U.S. 337, 356 (1991) (holding that Jones Act status
turns on the employee’s “precise relation” to the vessel).

      The majority then references several cases to support Naquin’s claim to
seaman’s status, but they have no bearing on what circumstances, if any,
entitle a dockside worker like Naquin to Jones Act coverage. The sole issue in
Stewart v. Dutra Constr. Co. was whether the dredge was a vessel for the
purposes of the Jones Act. The court did not address whether the harbor-
bound worker, much less the land-based repair supervisor suing in our case,
faced maritime peril. Stewart v. Dutra Const. Co., 543 U.S. 481, 485 (2005).
Similarly, the dispositive factor in Grab v. Boh Bros. Constr. Co., L.L.C., was
not that the workers operated near the shore but that their work exposed
them to sea-related dangers. The plaintiffs travelled daily to their worksite
by crewboat and helped navigate a barge, which routinely had to be moved
along the length of the Lake Pontchartrain bridge. Grab v. Boh Bros. Constr.
Co., L.L.C, 506 F. App’x 271, 274, 276 (5th Cir. 2013). Naquin’s shore-side
duties exposed him to no such maritime perils.

      In my view, the majority also misapplies Endeavor Marine. In that
case, the district court held that plaintiff was not a seaman under Harbor Tug
and Barge Co. v. Papai because his job did not literally “take him to sea.” In
re Endeavor Marine Inc., 234 F.3d 287, 289 (5th Cir. 2000) (per curiam). We
reversed, holding that the “going to sea” requirement is satisfied whenever
the employee’s connection to the vessel regularly exposes him to maritime


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                                      No. 12-31258

perils. Id. at 291. Further, we ruled that the plaintiff faced such perils. Id.
at 292. The contrast between the work performed by the Endeavor Marine
plaintiff and Naquin, however, seems clear. The Endeavor Marine plaintiff
was a derrick barge crane operator who loaded and unloaded cargo vessels in
the Mississippi River (not a canal). Id. at 288. His job required him to travel
over water to his worksite and exposed him to the uniquely maritime dangers
that arose when his barge was moored to the cargo vessels that he was
assigned to load or unload. Id. at 289. He was injured, moreover, when
struck by a mooring cable as he was handling the lines while waiting for his
barge to be positioned alongside the cargo vessel. Id. Naquin, on the other
hand, spent nearly all of his time dockside, repairing boats that were secured
in the shipyard canal, or operating a land-based crane, or working in the
shipyard fabrication shop.          His employment, in sum, was substantially
similar to that of other land-based employees whose seaman status has been
denied by federal and state courts.3

       Finally, the majority refers to our “brown water” cases to show that
employees who work on quiet waterways may recover under the Jones Act.
All of these cases, however, involve employees who performed their work




       3
         See, e.g., Clark v. Am. Marine & Salvage, LLC, 494 Fed. App’x 32 (11th Cir. 2012)
(unpublished) (affirming dismissal of Jones Act claim brought by crane operator who
performed most of his repairs on land); Schultz v. Louisiana Dock Co. 94 F. Supp. 2d 746 (E.D.
La. 2000) (ruling that repairman who inspected and repaired moored barges was not a
seaman); Richard v. Mike Hooks, Inc., 799 So.2d 462 (La. 2001) (reversing lower courts and
dismissing land-based repairman’s Jones Act claim).
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                                     No. 12-31258

while their vessel was operating on water.4              Thus, they offer no help to
Naquin, who worked nearly always in the shipyard.
                                       IV. Conclusion
       With all respect to the majority, I would hold that Naquin is not
entitled to seaman status and, therefore, reverse the district court’s ruling
that EBI was liable under the Jones Act.




       4
         See Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir. 1966) (affirming seaman
status where employee worked on barge that traveled through navigable waters); Colomb v.
Texaco, Inc., 736 F.2d 218 (5th Cir. 1984) (holding that oilfield worker assigned to inland,
submersible barge was a seaman); Landry v. Amoco Production Co., 595 F.2d 1070 (5th Cir.
1979) (providing that worker employed as roustabout aboard barges on inland waters is a
seaman); Boh Bros. Const. Co., LLC, supra (ruling that employees who worked aboard a crane
barge on Lake Ponchartrain were seamen).


                                            27
