     Case: 11-30518     Document: 00511933828         Page: 1     Date Filed: 07/25/2012




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

                                                                            FILED
                                                                           July 25, 2012

                                       No. 11-30518                        Lyle W. Cayce
                                                                                Clerk

RAMIRO MARTINEZ,

                                                  Plaintiff–Appellee
v.

OFFSHORE SPECIALTY FABRICATORS, INCORPORATED,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:08-CV-4224


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
        Plaintiff–Appellee      Ramiro      Martinez,      a    seaman      employed       by
Defendant–Appellant Offshore Specialty Fabricators, Inc. (“Offshore”) and
permanently assigned to its vessel the D/B WILLIAM KALLOP, was injured
while working aboard the M/V MR. GILBERT, another vessel owned by
Offshore. Martinez sued Offshore, asserting claims of Jones Act negligence and
unseaworthiness. Following a bench trial, the district court entered judgment



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 11-30518

in favor of Martinez, and Offshore appealed. For the reasons stated below, we
AFFIRM.
                                  I. BACKGROUND
        Martinez began working as a mechanic for Offshore in March 2007. In
May 2008, Martinez was working as a crew member on the derrick barge
WILLIAM KALLOP, a vessel owned and operated by Offshore. On May 26,
2008, while working aboard the WILLIAM KALLOP, Martinez and his
supervisor, Thomas Smith, were instructed to go aboard the MR. GILBERT—a
tug also owned and operated by Offshore that was providing support to the
WILLIAM KALLOP—in order to repair a defective winch. This was the first
time Martinez had ever been aboard the MR. GILBERT. Upon inspecting the
winch, Smith saw that a pin was out of alignment and badly rusted. Smith came
up with the following process to remove the rust from the pin and reposition it
correctly: they would heat the pin with a welding torch, “shock” it with water,
and use a sledgehammer to beat away the rust and force the pin back into place.1
They repeated the steps in this process for nearly an hour, with the job of
swinging the sledgehammer alternating between Smith and Martinez. At trial,
both Martinez and Smith testified that the area in which they had to work was
cramped, requiring them to bend over while swinging the sledgehammer.
        After about an hour of work, Martinez “felt something pop in [his] neck.”
Smith saw Martinez “twitch” and asked him whether something was wrong, to
which Martinez replied that there was something wrong with his neck. Smith
told Martinez to stop working. The job was eventually finished using a hydraulic
jack.


        1
         Offshore company policy required that workers complete a Job Safety Analysis before
embarking on tasks in order to ensure that potential hazards were identified and safe
procedures were decided upon. On this occasion, Martinez, Smith, and the other seamen they
were working with signed a blank Job Safety Analysis without filling it out; Smith went back
after the task was completed and filled in the substance of the form.

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      Shortly after his injury, Martinez visited Doug Mauro, a medic aboard the
WILLIAM KALLOP, and asked for Bengay or a similar product because he had
soreness in his arm after using a hammer. On May 28, Martinez visited Ray
Pesson, another medic aboard the WILLIAM KALLOP. Martinez stated that he
could not “move his head or jaw without shooting pain in the neck and shoulder.”
      On May 30, Martinez was interviewed by Pierre Gautreaux, a claims
adjuster hired by Offshore. The following is a portion of that interview:
      Q:    Were you in a restricted area where you had to swing?
      A:    I had, well I had plenty of room, yeah.
      Q:    Okay, okay. Um . . .
      A:    It was about . . . five foot, in between the, the uh, the bulwark,
            and the winch.
      Q:    Okay. So you had enough room to swing the hammer?
      A:    I had enough room, yeah, so I was . . .
      Q:    Okay. And you were swinging your left hand mainly?
      A:    Left hand. I’m a left hander.
      Q:    You’re left handed, right.
      A:    Yes.
      Q:    Um, was there any trash or clutter in the area where you
            were standing that was making it difficult for you to get, you
            know, a good aim, or . . . ?
      A:    No, well only, they only had the welding tables and a bunch
            of wrenches there that, I mean, tools.
During Martinez’s deposition, the following relevant exchanges occurred:
      Q:    So what do you think caused your neck to pop?
      A:    The hammering with the pipe . . .
      Q:    So you’re saying using a hammer with a pipe caused your
            injury?
      A:    Yes.
                                       ***
      Q:    Did anything else play any part in your accident other than
            using this steel-handled hammer and trying to drive through
            the pin?
      A:    No.



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        Martinez visited a neurosurgeon and two orthopedic surgeons. He was
diagnosed with cervical radiculopathy, cervical strain, and degenerative disc
disease, and several doctors concluded that his condition was caused by the May
26 injury. Dr. John Masciale, an orthopedic surgeon, concluded that Martinez
would have “permanent restrictions on repetitive bending, stooping, lifting, and
carrying,” but that he would be “able to undertake light-to-medium work.”
Nathaniel Fentress performed a vocational rehabilitation evaluation of Martinez
and concluded that Martinez’s “current prognosis to successfully reenter and
maintain significant gainful employment in his usual occupation as a mechanic
or his prior occupations as a deckhand” was “poor.” Fentress opined that
Martinez could possibly return to entry-level service economy employment, such
as a security guard, small engine mechanic, or light duty delivery driver. At the
time of the bench trial, Martinez had not worked since the injury.
        In 2007, the last year before Martinez’s accident, he earned $48,315
working for Offshore. His annual income in the five years preceding 2007 was:
$8,009 in 2006; $3,681 in 2005; $2,803 in 2004; $6,200 in 2003; and $7,675 in
2002.
        Martinez filed suit against Offshore under the Jones Act, 46 U.S.C.
§ 30104, and the general maritime law of the United States. The case was tried
without a jury on May 14, 2011 before Judge Eldon Fallon of the United States
District Court for the Eastern District of Louisiana, who later entered findings
of fact and conclusions of law. Martinez v. Offshore Specialty Fabricators, Inc.,
No. 2:08-CV-4224, 2011 WL 1527096 (E.D. La. Apr. 20, 2011.) The court
concluded that Offshore was negligent, that its negligence contributed to
Martinez’s injury, that the MR. GILBERT was unseaworthy, and that the
unseaworthiness played a substantial part in causing Martinez’s injury; it
therefore found that Martinez was entitled to recover damages for past and
future lost wages and past and future pain and suffering. Id. at *6–8. The court

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                                   No. 11-30518

also concluded that Martinez was contributorily negligent and accordingly
reduced his recovery by 20%. Id. at *7–8. Offshore timely appealed.
            II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction over this case pursuant to 28 U.S.C.
§§ 1331 and 1333. This court has jurisdiction under 28 U.S.C. § 1291. When
reviewing the district court’s judgment following a bench trial, findings of fact
are reviewed for clear error and legal issues are reviewed de novo. Becker v.
Tidewater, 586 F.3d 358, 365 (5th Cir. 2009).
                               III. DISCUSSION
A. Negligence
      A Jones Act employer is required to exercise “ordinary prudence under the
circumstances,” Gautreax v. Surlock Marine, Inc., 107 F.3d 331, 338 (5th Cir.
1997) (en banc), to maintain a “reasonably safe work environment,” Ober v.
Penrod Drilling Co., 726 F.2d 1035, 1037 (5th Cir. 1984) (per curiam). In order
to prevail in a claim for negligence, the plaintiff must present some evidence
from which the fact finder can infer that an unsafe condition existed and that
the vessel owner either knew, or in the exercise of due care should have known,
of the condition. Perry v. Morgan Guar. Trust Co. of N.Y., 528 F.2d 1378, 1379
(5th Cir. 1976). Under the Jones Act, “an employer is liable for the negligence
of his employees.” Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th Cir. 1991). “If
the defendant’s negligence played any part, however small, in producing the
seaman’s injury, it results in liability.” Id.
      “In a bench tried admiralty case, a district court’s findings concerning
negligence and causation are findings of fact reviewable by this court only for
clear error.” Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008).
A finding is clearly erroneous when “the appellate court, viewing the evidence
in its entirety, is left with the definite and firm conviction that a mistake has
been made.” Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 376

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(5th Cir. 2012) (internal quotation mark omitted). Where the district court’s
finding is plausible in light of the record as a whole, it is not clearly erroneous,
even if the appellate court would have weighed the evidence differently. Id.
Findings of fact based on the credibility of witness testimony are accorded “even
greater deference.” Tokio Marine & Fire Ins. Co., Ltd. v. FLORA MV, 235 F.3d
963, 970 (5th Cir. 2001).
      The district court found that “Offshore was negligent in requiring
[Martinez] to swing a sledgehammer in cramped conditions that required him
to crouch and bend forward in a manner that increased the risk of injury to his
neck and upper torso,” and that “a reasonable alternative tool, the hydraulic
jack, was available and was in fact used to complete the task.” Martinez, 2011
WL 1527096, at *6. In finding that this situation amounted to negligence, the
court relied upon Crador v. Louisiana Department of Highways, 625 F.2d 1227
(5th Cir. 1980), which held that evidence that a seaman had to work in “poorly
lighted, awkward and confined quarters without adequate help and without
suitable tools and equipment” was sufficient to support a jury verdict of
negligence. Id. at 1230.
      Offshore first argues that the district court clearly erred in finding that
Martinez’s workspace was restricted. Offshore argues that this finding was
clearly erroneous in light of evidence that Martinez failed to mention a cramped
workspace during his deposition and that he told Offshore’s claims adjuster that
he had “plenty of room” in which to work.
      In response, Martinez highlights the evidence that supports the district
court’s finding that the workspace was cramped. Smith testified that the
workspace was “so tight, it’s just like you had a ledge over, you couldn’t stand
up. . . . [W]e all had to lean over and get good solid licks on it. . . . [Y]ou might
have had two, no more than two feet of working room at most in that area.”
Martinez testified that a work table was in the area that prevented him from

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                                       No. 11-30518

swinging the sledgehammer normally, and demonstrated his swinging position
for the court by bending his torso over. Offshore argues that Martinez and
Smith were incredible witnesses, while Martinez notes that Offshore failed to
call any witnesses at trial to rebut the testimony of Martinez and Smith that the
work space was insufficient.
       In light of the record evidence, we conclude that the district court did not
clearly err in finding that the workspace was cramped. This finding is supported
by the testimony of Smith and Martinez; while Offshore challenges their
credibility, the district court was in a far better position to assess their
credibility than are we. Although the testimony about a cramped workspace is
contradicted by Martinez’s statement to the claims adjuster that he had plenty
of room in which to work, the court could reasonably credit the fully developed
trial testimony that it was able to witness over the transcript of an interview
with an Offshore claims adjuster.
       Nor did the district court clearly err in finding that Offshore was
negligent. The evidence upon which the district court relied to make this factual
finding—that Martinez was required to swing a sledgehammer while bent over
because of space restrictions, despite the availability of alternative
equipment—is sufficient to make the finding plausible in light of the record as
a whole. We are not left with the firm conviction that a mistake has been made.
       Offshore also argues that the finding of negligence was in error because
no evidence was introduced that Offshore knew or should have known of the
unsafe working conditions.2 As noted above, the negligence of an employee is



       2
           Offshore makes this argument in a single sentence of its briefing on the issue of
negligence. Offshore fails to cite any authority in support of this point or to elaborate upon
it with any argument. “A party that asserts an argument on appeal, but fails to adequately
brief it, is deemed to have waived it.” United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.
2010). Even if we were to treat this argument as properly presented, it is without merit, as
discussed below.

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                                  No. 11-30518

imputed to a Jones Act employer, see Brister, 946 F.2d at 354, and there was
sufficient evidence presented to support a finding that Smith, Martinez’s
supervisor, knew or should have known that the work Martinez was engaged in
was unsafe. Smith saw the rusted condition of the pin and came up with the
procedure for removing the rust. Smith also testified about the cramped space
in which they had to work and the fact that they had to bend over in order to
swing the sledgehammer. In addition, the evidence showed that the Job Safety
Analysis that was supposed to be completed before a project was undertaken was
not completed until after this job was finished, and Smith should have known
that the failure to complete this analysis would increase the risk that an
employee would be injured by working in an unsafe fashion.3
      For the foregoing reasons, we conclude that the district court did not err
in finding that Offshore was negligent and that its negligence caused Martinez’s
injury. Because the finding of negligence is sufficient to support the judgment
in favor of Martinez, we need not consider the alternative basis of
unseaworthiness also relied upon by the district court. See Jemison v. Falcon
Drilling Co., Inc., 140 F.3d 1038, at *6 n.6 (5th Cir. 1998) (per curiam)
(unpublished); Guevara v. Mar. Overseas Corp., 34 F.3d 1279, 1282 (5th Cir.
1994) (per curiam).
B. Contributory Negligence
      A seaman is also “obligated under the Jones Act to act with ordinary
prudence under the circumstances,” which circumstances take account of the
seaman’s “experience, training, [and] education.” Gautreaux, 107 F.3d at 339.
As is the case for causation with respect to employers, the causation standard
for the negligence of seamen is slight: “To establish causation, an employer must
show that a seaman’s negligence played any part, even the slightest, in

      3
        The final component of a Jones Act negligence claim, causation, has not been
challenged by Offshore on appeal.

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producing the injury.” Johnson, 544 F.3d at 302 (internal quotation marks
omitted). While a seaman’s contributory negligence will not bar recovery under
the Jones Act, Gavagan v. United States, 955 F.2d 1016, 1019 (5th Cir. 1992), it
is an affirmative defense that will diminish recovery in proportion to the
seaman’s fault, Johnson, 544 F.3d at 302. Findings of contributory negligence
and allocations of fault are factual findings reviewed for clear error. Motts v.
M/V GREEN WAVE, 210 F.3d 565, 569 (5th Cir. 2000).
      The district court found that “[i]n light of [Martinez’s] extensive experience
working aboard boats and as a mechanic, [he] knew or should have known that
using a sledgehammer in cramped conditions such as those aboard the M/V MR.
GILBERT could increase the risk of injury.” Martinez, 2011 WL 1527096, at *8.
It also found that Martinez “knew or should have known that Offshore had a
‘work-stop’ program through which [he] could have immediately stopped work
on the frozen winch pin until a safer method could be determined.” Id. Based
on these findings, the district court found that Martinez was 20% at fault for his
injury. Id.
      Offshore argues that the district court erred in finding that Martinez was
only 20% at fault for his injury. None of the cases cited by Offshore in support
of this argument establishes that the district court’s finding of fault was clear
error. Because Offshore has failed to present authority or argument that shows
the district court’s determination of relative fault was clearly erroneous, we
uphold its contributory negligence finding.
C. Lost Wages
      The final issue that Offshore raises on appeal relates to the lost wages
awarded to Martinez by the district court. Offshore argues that the award was
unsupported by the evidence and that the district court used a clearly erroneous
income basis for its calculation of the award.



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                                 No. 11-30518

1. Factual Basis for Future Lost Wages
      First, Offshore argues that there was no factual basis for concluding that
Martinez would be unable to return to his prior work as a mechanic. Offshore
relies on the deposition testimony of Dr. John Masciale, an orthopedic surgeon
who treated Martinez. Dr. Masciale stated that even after Martinez reached
maximum medical recovery, which he anticipated would occur in July 2011, he
would recommend that Martinez avoid “repetitive bending and stooping,
repetitive lifting and carrying, awkward postures of the neck, and very heavy
lifting and carrying,” and that he avoid “lifting and carrying beyond an
occasional basis of more than 40 or 50 pounds at a maximum.” When asked by
Offshore’s counsel how he would translate those restrictions into Department of
Labor classifications for light, medium, or heavy labor, Dr. Masciale responded,
“It would likely fall on the range between light to medium work, but certainly
not heavy or very heavy work.”        Offshore then relies on the Vocational
Rehabilitation Evaluation completed by Nathaniel Fentress, in which Fentress
stated that the job Martinez was performing for Offshore at the time of his
injury was “maintenance mechanic,” classified by the Department of Labor as
“medium” labor. Offshore points out that the Department of Labor classifies
“medium” work as involving the following strength requirements: “Exerting 20
to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently,
and/or greater than negligible up to 10 pounds of force constantly to move
objects.” Based on Fentress’s report and the strength requirement description
for medium labor jobs, Offshore argues that (1) the job Martinez was doing at the
time of his injury was medium labor work, which is in the “range” that Dr.
Masciale said Martinez could return to, and (2) the requirements of a medium
labor job do not exceed those restrictions that Dr. Masciale placed upon
Martinez. For this reason, Offshore argues that Martinez could return to his



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                                  No. 11-30518

former job as a mechanic and that an award for future lost wages is
unwarranted.
      Martinez argues in response that Dr. Masciale opined that Martinez could
work in the range between light to medium work, not that Martinez could
perform any and all jobs in the medium-work range. Martinez also argues that
the range approved by Dr. Masciale is qualified by the specific physical
restrictions he imposed (i.e., no repetitive bending, stooping, etc.), so that the
universe of medium-labor jobs that Martinez can do is narrowed to a smaller
group involving no repetitive bending, stooping, and so forth. Martinez points
out that Fentress’s report describes the physical demands of a maintenance
mechanic job as follows: “stooping, kneeling, crouching, frequent reaching and
handling with the upper extremities bilaterally and in all directions and
standing upwards to and in excess of two-thirds of the work day.” Martinez
argues that this job description could very well encompass the repetitive
bending, stooping, lifting, carrying, and awkward neck postures in which
Martinez can no longer engage. Martinez also notes that Fentress’s report
stated that Martinez’s prognosis for returning to his usual occupation as a
mechanic was “poor” and that after a full recovery Martinez “may be able to
pursue some entry level service economy jobs.”         For all of these reasons,
Martinez argues that the district court’s finding that he cannot return to his job
as a mechanic was not clearly erroneous.
      We conclude that Martinez has the better of this argument.              The
description of a mechanic’s job provided by Fentress (“stooping, kneeling,
crouching, frequent reaching and handling with upper extremities . . .”) is such
that the job could easily exceed the physical restrictions placed upon Martinez,
which preclude him from doing almost all of those activities on a repetitive basis.
In addition, the Department of Labor description of medium labor jobs states
that such jobs may require exerting 10 to 25 pounds of force frequently and/or

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                                    No. 11-30518

less than 10 pounds of force “constantly” to move objects, which describes exactly
the type of “repetitive lifting and carrying” from which Martinez is prohibited.
Finally, Fentress’s report provides a poor prognosis for Martinez to return to the
workforce in general. For these reasons, we conclude that the district court did
not clearly err in finding that Martinez was entitled to future lost wages.
2. Calculation of Past and Future Lost Wages
      Offshore also argues that the district court improperly calculated the past
and future lost wages due to Martinez. “The paramount concern of a court
awarding damages for lost future earnings is to provide the victim with a sum
of money that will, in fact, replace the money that he would have earned.”
Culver v. Slater Boat Co., 722 F.2d 114, 120 (5th Cir. 1983) (en banc). “[A]n
award for damages cannot stand when the evidence to support it is speculative
or purely conjectural.” Masinter v. Tenneco Oil Co., 929 F.2d 191, 194 (5th Cir.
1991). The district court’s assessment of damages is a finding of fact reviewed
for clear error. Hernandez v. M/V RAJAAN, 841 F.2d 582, 587 (5th Cir. 1988).
      Offshore argues that the district court clearly erred in using the figure
$48,315 as the annual income from which to calculate Martinez’s lost wages.
This figure is the amount that Martinez earned in 2007 from his work as an
Offshore employee from March through the end of the year. Although this was
Martinez’s last full year of earnings history before his injury, Offshore argues
that this amount should not have been used because it is much higher than
Martinez’s earnings in prior years. Offshore argues that Martinez’s average
annual income for the 40 years preceding his injury was $8,400 and that his
average annual income for the five years preceding his injury was $5,673.60.
Offshore thus argues that the district court “should have based any award for
past or future lost wages on a three year, five year or other average of the
plaintiff’s historical earnings.”



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      Calculation of lost income “begins with the gross earnings of the injured
party at the time of the injury,” to which amounts such as fringe benefits should
be added and taxes and work expenses should be deducted. Culver, 722 F.2d at
117 (emphasis added). Offshore argues that we should vary the calculation
method in Culver by beginning with an average of Martinez’s earnings over
several years, but the cases it cites in support of its argument do not provide
authority for calculating lost wages in this manner.
      In Hernandez v. M/V RAJAAN, this court held that the district court
clearly erred in using “the average full-time United States longshoreman’s rate
of $23,000.00 per annum” to calculate lost wages, when the plaintiff had never
earned anything near this “average” rate—his earnings in the four years
preceding his accident were $8,341; $8,634; $6,500; and $2,600. 841 F.2d at 587.
The court noted these figures not to calculate their average, but to show the lack
of any evidence supporting the figure used by the district court and to show also
how far that figure was from amounts that were supported by evidence. The
court held that the plaintiff could accept an amount calculated by the defendant
(which was the result of averaging the actual annual income amounts listed
above) or opt for a new trial on damages. Id. at 588. Thus, Hernandez supports
the proposition that awards for lost wages cannot be based on speculation or
conjecture, but it does not support the proposition that wages should be averaged
over several years to determine the baseline from which to calculate lost wages.
      Herbert v. Wal-Mart Stores, 911 F.2d 1044 (5th Cir. 1990) (per curiam),
also cited by Offshore, is even less helpful to Offshore’s argument. In that case,
the evidence presented of Herbert’s annual income was as follows: in 1982 he
earned $31,897; in 1984 he earned $27,633; in 1987 he earned $1,928; and in
1988, the year of his injury, he earned $5,918 (no evidence was presented of his
earnings for the missing years). Id. at 1050. In calculating Herbert’s lost wages,
the district court used his annual income the year of his injury, $5,918. Id. This

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court affirmed, noting that although the damages awarded were “low, they were
by no means clearly erroneous.” Id. at 1049–50. The court never suggested that
it was unreasonable to use only the most recent year of Herbert’s earnings,
despite the large difference between that amount and the amount he earned only
a few years earlier.
      Offshore has thus presented no authority or argument that persuades us
to deviate from Culver’s instruction that lost wages should be calculated based
upon the plaintiff’s gross earnings at the time of his injury. The district court’s
calculation of damages was supported by evidence in the record and was not
clearly erroneous.
                               IV. CONCLUSION
      The district court did not clearly err in finding that Offshore was
negligent. Nor did it clearly err in calculating the respective fault of the parties,
in determining that Martinez was entitled to future lost wages, or in calculating
the award for lost wages. For these reasons, the judgment of the district court
is AFFIRMED.




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