     Case: 09-30443     Document: 00511056157          Page: 1    Date Filed: 03/18/2010




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

                                                  FILED
                                                                           March 18, 2010
                                       No. 09-30443
                                                                       Charles R. Fulbruge III
                                                                               Clerk
DAVID R. MAYNE,

                                                   Plaintiff–Appellee,

v.

OMEGA PROTEIN INC.; COTE BLANCHE BAY M/V,

                                                   Defendants–Appellants.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-4210


Before SMITH, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Omega Protein, Inc. and its vessel, F/V COTE BLANCHE BAY (jointly,
Omega Protein), appeal a district court judgment in favor of David Mayne.
Omega Protein seeks reversal on numerous grounds related to the pleadings and
the sufficiency of the evidence introduced at trial. We affirm in part, vacate in
part, and remand.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30443

                                        I
      Omega Protein employed Mayne as a fisherman on the F/V COTE
BLANCHE BAY. The F/V COTE BLANCHE BAY specializes in harvesting
menhaden, a small oil- and protein-rich fish used in a variety of products,
including fish oil and meat. The process of fishing for menhaden involves three
vessels. When a school of menhaden is located, the main vessel releases two
smaller, forty-foot vessels, referred to as “purse boats.” The purse boats deploy
a net to encircle the school of fish. The net, which is approximately 1,200 feet
long, is weighted down by eighty large metal rings. A long cable runs through
the rings; it is used to close the bottom of the net after the purse boats wrap it
around the school of fish. Once the net is in place, the purse boats come together
in a “V” configuration alongside the main vessel. At this point, a winch located
on the main vessel is used to lift the net out of the water. Crew members in the
purse boats pile the net into the purse boats. They work with the winch operator
to ensure that the lift goes smoothly and that the metal rings do not get caught,
which could result in damage to the net.
      On the day Mayne was injured, the F/V COTE BLANCHE BAY was
fishing for menhaden off the coast of Louisiana. Mayne was stationed on one of
the purse boats and securing the net as it was lifted out of the water. Captain
Schools, an Omega Protein employee, activated the winch on the main vessel to
bring in the net. Captain Schools had a full view of Mayne. At some point in the
process of lifting the net, a ring became caught between a step and the thwart
on Mayne’s purse boat. The continued operation of the winch built up tension
on the ring. When the ring broke free, it shot upward and hit Mayne in the face,
causing multiple fractures to his face and skull.        After initial emergency
treatment, Mayne underwent surgery to remove bone fragments and repair some
of the damage.



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      Thirteen days after the surgery, Mayne returned to his surgeon, Dr. Robin
Barry, complaining of headaches and sensitivity to light. Two weeks later,
Mayne went to see Dr. Fayez Shamieh, a neurologist, for treatment related to
dizziness, blurred vision, memory problems, and headaches. Shamieh stated
that these symptoms were consistent with a severe blow to the face. Shamieh
continues to treat Mayne for his recurring headaches.
      When the pain in his head and face began to subside, Mayne experienced
neck pain. He returned to Shamieh, who ordered an MRI of Mayne’s cervical
spine. After reviewing the results of the MRI, Shamieh recommended that
Mayne see Dr. Clark Gunderson, an orthopedic surgeon, for further treatment.
      Gunderson examined Mayne and concluded that Mayne suffered from
significant symptomatic cervical herniations. Gunderson recommended that
Mayne undergo a two-level anterior discectomy and fusion with anterior plate
fixation and use of an external bone graft stimulator. Gunderson noted that an
MRI taken before the accident showed some disc protrusion, but, considering the
different symptoms, he stated that he felt within reasonable medical probability
that the fishing accident caused the cervical symptoms and Mayne’s resulting
disability.
      One year after the incident, Mayne went to a plastic surgeon, Dr. Darrell
Henderson, for issues related to his headaches and breathing problems.
Henderson noted that Mayne suffered from severe lacerations on his nose and
eyelids and deviations of his septum. Henderson concluded that Mayne required
surgery to address the scarring and nasal fractures.
      Mayne was also evaluated by Lawrence Dilks, Ph.D., a neuropsychologist,
with regard to his closed head injury. After examining Mayne and reviewing his
test results, Dilks concluded that the blow to Mayne’s head had caused cognitive
impairment. In addition, Dilks stated that Mayne suffered from depression,



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secondary to his cognitive impairment, and pain disorder. It is undisputed that
Mayne suffered from cognitive impairment before the accident as well.
      Approximately a year and a half after Mayne was injured, Omega Protein
retained a physician, Dr. Thomas Bertuccini, to evaluate Mayne’s need for
cervical surgery. After reviewing the medical records and examining Mayne,
Bertuccini suggested that Mayne receive left epidural steroid injections rather
than the surgery that Gunderson recommended. Bertuccini compared the tests
conducted before Mayne’s injury with the tests afterwards and found that there
was no change between the two periods. Bertuccini recognized, however, that
a trauma of the sort that Mayne underwent could play a part in causing a
pre-existing condition to become symptomatic.
      Immediately following the accident, Omega Protein began paying
maintenance to Mayne at the rate of $20 per day. Omega Protein also paid for
some of Mayne’s medical bills. These payments were suspended three months
after the accident. Omega Protein never resumed the payments.
      Mayne filed suit against Omega Protein in district court, seeking damages
due to the negligence of Omega Protein employees and the unseaworthiness of
the F/V COTE BLANCHE BAY. Mayne also sought maintenance and cure, as
well as attorney’s fees for failure to pay these benefits in a timely fashion. After
the pleadings were closed, Omega Protein filed a motion for judgment on the
pleadings, arguing that Mayne failed to allege sufficient facts to support his
claims of Jones Act negligence and unseaworthiness. The district court denied
this motion. After a bench trial, the district court found that Mayne suffered
damages due to the negligence of Omega Protein employees and the
unseaworthiness of the vessel. The district court also found that Mayne was
entitled to payment for maintenance and cure, as well as attorney’s fees because
of Omega Protein’s willful denial of maintenance and cure. The district court
granted Mayne $37,801 in past wage loss, $226,196 in future wage loss, $25,000

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in past medical expenses, $75,000 in future medical expenses, $300,000 in past
pain and suffering, $400,000 in future pain and suffering, maintenance of $35
per day from the date of the injury until the date of trial, $15,000 in attorney’s
fees, and pre- and post-judgment interest. This appeal followed.
                                               II
       Omega Protein raises a number of issues. First, it argues that the district
court erred when it denied the motion for judgment on the pleadings. We review
a district court’s decision on a motion for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c) de novo.1 Rule 12(c) provides that
“[a]fter the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” The standard for deciding a motion
under Rule 12(c) is the same as that for deciding a motion under Rule 12(b)(6).2
“[T]he central issue is whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief.”3 “Federal Rule of Civil Procedure
8(a)(2) requires only ‘a short and plain statement of the claim showing that the
pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.’”4
       Omega Protein argues that its motion for judgment on the pleadings
should have been granted because the pleadings did not place it on notice of any
factual or legal basis for the Jones Act and unseaworthiness claims. After a
review of Mayne’s complaint and the joint pretrial order, we conclude that the



       1
           In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
       2
         Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8
(5th Cir. 2002).
       3
       Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (internal quotation
marks omitted).
       4
         Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)).

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pleadings provide ample description of Mayne’s claim for relief and the grounds
on which it rests.         Mayne alleged that Captain Schools was negligent in
continuing to draw in the net when the ring was caught and that the vessel was
unseaworthy because it allowed the ring to catch. These fact-specific allegations
were sufficient to notify Omega Protein of the grounds for Mayne’s complaint.
Therefore, the district court did not err when it denied Omega Protein’s motion
for judgment on the pleadings.
                                               III
       Next, Omega Protein argues that Mayne did not present sufficient
evidence to        prove that his accident was the result of the vessel’s
unseaworthiness or Omega Protein’s negligence under the Jones Act.                           In
reviewing a bench trial, we review findings of fact for clear error and conclusions
of law de novo.5 A trial court’s findings with respect to negligence and proximate
cause are findings of fact.6 “A factual finding is not clearly erroneous as long as
it is plausible in the light of the record read as a whole.”7
       An unseaworthiness claim is “predicated without regard to fault or the use
of due care.       A shipowner has an absolute nondelegable duty to provide a
seaworthy vessel.” 8        “To establish a claim of unseaworthiness, the injured
seaman must prove that the owner has failed to provide a vessel, including her
equipment and crew, which is reasonably fit and safe for the purposes for which
it is to be used.”9 This standard does not require that the vessel and equipment


       5
           Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009).
       6
           Id.
       7
           United States v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998).
       8
        Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991) (internal quotation marks
omitted).
       9
       Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002) (internal quotation
marks omitted).

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                                         No. 09-30443

be perfect, but rather that they be reasonably suited for their purposes. 10 In
addition, the plaintiff must establish that “the unseaworthy condition played a
substantial part in bringing about or actually causing the injury and that the
injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.”11
      On appeal, Omega Protein argues that the district court erred when it
found that the purse boat was not fit for its intended purpose. According to
Omega Protein, there was no testimony to establish that the purse boat was
unreasonably dangerous. Omega Protein’s assertions of error are unconvincing.
Contrary to Omega Protein’s statements, there was testimony that it was
reasonably foreseeable that a ring could become caught between the step and the
thwart. Omega Protein did not implement safety procedures to protect its
employees from such an incident. There was also no evidence that the gap
served any purpose or that closing the gap was unfeasible or would impair the
function of the vessel. The district court could plausibly conclude from this
evidence that the purse boat was not reasonably fit for its intended purpose.
Imposing liability here is not equivalent to requiring an accident-free ship. A
shipowner must provide a vessel that is reasonably fit and safe for the purposes
for which it is to be used.12 Here, Omega Protein did not do so.
      Because we hold that the district court did not err in finding that the
vessel was unseaworthy, we need not address the issue of Jones Act negligence.
The finding of unseaworthiness is sufficient to support Mayne’s award for wage
loss, medical expenses, pain and suffering, and pre- and post-judgment




      10
           Phillips v. W. Co. of N. Am., 953 F.2d 923, 928 (5th Cir. 1992).
      11
           Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir. 1988).
      12
           Boudreaux, 280 F.3d at 468.

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interest.13 Both sides agreed in oral argument that if the unseaworthiness
finding were upheld, it would be unnecessary to reach the negligence issue since
all amounts awarded by the district court would be the same even in the absence
of a finding of Jones Act negligence.
                                                IV
       Omega Protein argues that Mayne did not provide sufficient evidence to
prove that his cognitive impairment and cervical condition were caused by the
accident. Questions of causation are treated as fact questions, which we review
for clear error.14 In this case, we find no clear error on the part of the district
court when it found that the accident caused Mayne’s cognitive impairment and
cervical condition. On both issues, there was expert testimony sufficient to
support a finding that the accident caused the condition or worsening of the
condition in question.
                                                V
       Omega Protein contends that the district court erred when it found that
Omega Protein was arbitrary and capricious in the payment of maintenance and
cure and when it awarded attorney’s fees. We review a district court’s conclusion
that a seaman was entitled to an award of attorney’s fees for the willful failure
of his employer to pay maintenance and cure for abuse of discretion.15 We review
the factual findings underlying this conclusion for clear error.16
       A shipowner must pay maintenance and cure to a seaman who is injured
while in the service of his ship, regardless of whether the shipowner was at fault


       13
         See 1 THOM AS J. SCHO ENBAUM , ADMIRALTY AND MARITIM E LAW § 5-15 (4th ed. 2004);
Jauch v. Nautical Servs., Inc., 470 F.3d 207, 214-15 (5th Cir. 2006).
       14
          Villafranca v. United States, 587 F.3d 257, 260 (5th Cir. 2009); Gavagan v. United
States, 955 F.2d 1016, 1019 (5th Cir. 1992).
       15
            Breese v. AWI, Inc., 823 F.2d 100, 102-03 (5th Cir. 1987).
       16
            Id. at 103.

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or the ship unseaworthy.17            The obligation to pay maintenance and cure
“includes paying a subsistence allowance, reimbursing medical expenses actually
incurred, and taking all reasonable steps to ensure that the seaman receives
proper care and treatment.”18 If a shipowner is arbitrary and capricious in
failing to pay maintenance and cure, he is liable for attorney’s fees.19
      Omega Protein argues that it did not act arbitrarily or capriciously in
terminating maintenance and cure payments to Mayne because Mayne did not
provide it with documentation of any continuing medical treatment.                      This
argument is unavailing because the record establishes that Omega Protein had
contact with Mayne’s physicians and yet still failed to investigate the claims or
make payments beyond the first three months following Mayne’s injury.
Therefore, the district court’s findings are not clearly erroneous, and its award
of attorney’s fees was not an abuse of discretion.
                                               VI
      Omega Protein asserts that the district court erred when it ordered a
retroactive increase in the rate of maintenance from $20 per day to $35 per day.
Omega Protein argues that, because Mayne never pled that the rate of
maintenance was insufficient, any such claim was waived. However, Mayne’s
complaint did not limit the court to awarding only a reinstatement of
maintenance payments.            Maintenance and cure entitles a seaman to “the
reasonable cost of food and lodging, provided he has incurred the expense.”20 A
claim for maintenance, then, includes a claim for the correct rate of




      17
           Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987).
      18
           Id.
      19
           Id.
      20
           Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 587 (5th Cir. 2001).

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maintenance. Therefore, the district court did not err in ordering a retroactive
increase in the rate of maintenance.


                                              VII
       Finally, Omega Protein argues that the district court erred when it
determined its award of past and future lost wages. A trial judge’s assessment
of damages is a finding of fact that we review for clear error.21 A damage award
will be considered “excessive if it is greater than the maximum amount a trier
of fact could properly have awarded.”22
       The aim 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.” 23          In order to do so, this court has used a four-step
approach.24 The court must “estimat[e] the loss of work life resulting from the
injury or death, calculat[e] the lost income stream, comput[e] the total damage,
and discount[] that amount to its present value.” 25 “[C]alculation of the lost
income stream begins with the gross earnings of the injured party at the time
of injury.” 26 In previous cases, we have calculated “gross earnings” by analyzing
the earnings from past years when earnings data was inconsistent.27 A court


       21
            Hernandez v. M/V Rajaan, 841 F.2d 582, 587 (5th Cir. 1988).
       22
            Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1035 (5th Cir. 1984).
       23
            Culver v. Slater Boat Co., 722 F.2d 114, 120 (Former 5th Cir. 1983) (en banc).
       24
            Id. at 117.
       25
            Id.
       26
            Id.
       27
          See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1050 (5th Cir. 1990) (relying on
plaintiff’s earnings record over the previous two years); Hernandez v. M/V Rajaan, 841 F.2d
582, 587-88 (5th Cir. 1988) (relying on plaintiff’s earnings from the past 3.82 years to calculate
future-earnings loss).

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must recognize, however, that “[a]rriving at a reasonable estimate of anyone’s
financial future involves estimates of a whole spectrum of factors.” 28 “[W]e must
remember that the ultimate total damage figure awarded is the sum of a series
of predictions, none of which involves mathematical certainty, and that it is the
reasonableness of the ultimate figure that is really in issue . . . .”29
      Omega Protein argues that the district court erred when it relied on the
calculations of Mayne’s economic expert, Dr. Randy Rice. We agree. Rice’s
calculations were based on the assumption that Mayne’s annualized earnings at
the time of injury were $25,000 per year. No evidence supports this assumption.
The number was given to Rice by Mayne’s attorney. Mayne’s tax returns show
that he never earned more than $22,000 in the previous five years. Despite
repeated questioning from Mayne’s attorney, Rice declined to state that the
amount of $25,000 was a reasonable number. According to Rice, “I didn’t make
that call. [The number] was given to me by [Mayne’s attorney].” There is no
other testimony or evidence that Mayne’s earning capacity was or would become
$25,000 per year. “[A]n award for damages cannot stand when the evidence to
support it is speculative or purely conjectural.” 30 Because the district court
based its lost wages award on an assumption about Mayne’s income that has
insufficient evidentiary support, we vacate the damages award and remand for
further proceedings.
                                       *        *         *
      For the reasons stated, the judgment is AFFIRMED in part, but
VACATED as to Mayne’s damages award.                          We REMAND for further
proceedings.


      28
           Culver, 722 F.2d at 120.
      29
           Id. at 121 (internal quotation marks omitted).
      30
           Masinter v. Tenneco Oil Co., 929 F.2d 191, 194 (5th Cir. 1991).

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