     Case: 16-30481          Document: 00513946906           Page: 1   Date Filed: 04/10/2017




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

                                          No. 16-30481                                   FILED
                                                                                      April 10, 2017
                                                                                      Lyle W. Cayce
VIRGIE ANN ROMERO MCBRIDE,                                                                 Clerk

                Plaintiff - Appellee Cross-Appellant

v.

ESTIS WELL SERVICE, L.L.C.,

                  Defendant - Appellant Cross-Appellee
------------------------------------------------------------------

SAUL C. TOUCHET,

                Plaintiff - Appellee Cross-Appellant

v.

ESTIS WELL SERVICE, L.L.C.,

               Defendant - Appellant Cross-Appellee


                      Appeals from the United States District Court
                          for the Western District of Louisiana


Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.*
HAYNES, Circuit Judge:
       This consolidated Jones Act and general maritime law case arises out of
an accident on a barge in the navigable waterways of Louisiana. The owner of


       * District   Judge of the Western District of Texas, sitting by designation.
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                                      No. 16-30481

the barge, Defendant Estis Well Services, L.L.C., appeals from the district
court’s judgment in favor of plaintiffs Virgie Ann Romero McBride,
individually and on behalf of the minor child I.M.S., and Saul C. Touchet. 1 For
the reasons explained below, we AFFIRM.
                                    I. Background
       This is the second time this case has come before our court. The first
appeal was interlocutory, and we held in an en banc opinion that McBride 2 and
Touchet could not recover punitive damages on their Jones Act and general
maritime law claims. See McBride v. Estis Well Service, L.L.C., 768 F.3d 382
(5th Cir. 2014) (en banc). The accident in this case and the subsequent claims
filed against Estis were previously described in the en banc opinion as follows:
              These consolidated cases arise out of an accident
              aboard Estis Rig 23, a barge supporting a truck-
              mounted drilling rig operating in Bayou Sorrell, a
              navigable waterway in the State of Louisiana. The
              truck right toppled over, and one crew member, Skye
              Sonnier, was fatally pinned between the derrick and
              mud tank, and three others, Saul Touchet, Brian
              Suire, and Joshua Bourque, have alleged injuries. At
              the time of the incident, Estis Well Service, L.L.C.
              (“Estis”) owned and operated Rig 23, and employed
              Sonnier, Touchet, Suire, and Bourque (collectively, the
              “crew members”).
              Haleigh McBride, individually, on behalf of Sonnier’s
              minor child, and as administratrix of Sonnier’s estate,
              filed suit against Estis, stating causes of action for

       1 McBride and Touchet cross-appeal asking this court to reconsider its prior en banc
decision in this case holding that punitive damages are not available to the cross-appellants
on their Jones Act and general maritime law claims. See McBride v. Estis Well Service,
L.L.C., 768 F.3d 382 (5th Cir. 2014) (en banc). As McBride and Touchet both concede,
consideration of this claim is foreclosed by our prior en banc decision.
       2  The original named plaintiff, individually and on behalf of I.M.S., was the minor
child’s biological mother, Haleigh Janee McBride. I.M.S. was subsequently adopted by her
maternal grandparents, and Virgie McBride was substituted as the named plaintiff.
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            unseaworthiness under general maritime law and
            negligence under the Jones Act and seeking
            compensatory as well as punitive damages under both
            claims. The other crew members filed separate actions
            against Estis alleging the same causes of action and
            also requesting compensatory and punitive damages.
            Upon the crew members’ motion, the cases were
            consolidated into a single action.
Id. at 384 (footnote omitted).
      After we affirmed the district court’s judgment dismissing the punitive
damages claims, the case went back to the district court, culminating in a
week-long bench trial. Prior to trial, Estis conceded liability under both the
Jones Act and general maritime law claims, but continued to dispute damages
and the right to maintenance and cure. The district court made findings of fact
and conclusions of law on the record, and it awarded damages to McBride and
both damages and cure to Touchet. On McBride’s claims, the district court
ordered Estis to pay damages for, among other things, loss of past support, loss
of future support, and survival damages for pre-death fear and conscious pain
and suffering. On Touchet’s claims, the district court ordered Estis to pay
damages for, among other things, future lost earnings / loss of earning capacity
and future medical expenses, and to additionally pay cure until Touchet
reaches maximum medical improvement. Estis appeals the district court’s
judgment on these specific awards.
                           II. Standard of Review
      When reviewing a judgment from a bench trial, this court reviews the
findings of facts for clear error and the legal issues de novo. Lehmann v. GE
Glob. Ins. Holding Corp., 524 F.3d 621, 624 (5th Cir. 2008). “Under the clearly
erroneous standard, we will reverse only if we have a definite and firm
conviction that a mistake has been committed.” Canal Barge Co. v. Torco Oil

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Co., 220 F.3d 370, 375 (5th Cir. 2000). “If the district court made a legal error
that affected its factual findings, ‘remand is the proper course unless the record
permits only one resolution of the factual issue.’” Ball v. LeBlanc, 792 F.3d
584, 596 (5th Cir. 2015) (quoting Pullman-Standard v. Swint, 456 U.S. 273,
292 (1982)).
                                III. Discussion
   A. McBride’s Damages Award
      Estis challenges the district court’s award of damages to McBride for
both pre-death conscious pain and suffering and loss of past and future
support. We address each of Estis’s arguments in turn.
         i. Pre-Death Fear and Conscious Pain and Suffering
      Under the Jones Act, a plaintiff can recover damages for pre-death pain
and suffering. De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 141 (5th Cir.
1986). Compensable pain and suffering includes a victim’s “emotional injury
caused by fear of physical injury to himself.” Naquin v. Elevating Boats, L.L.C.,
744 F.3d 927, 939 (5th Cir. 2014) (quoting Consol. Rail Corp. v. Gottshall, 512
U.S. 532, 556 (1994)). However, for a plaintiff to recover for a decedent’s pain
and suffering, he “must prove, by a preponderance of the evidence, that the
decedent was conscious after realizing his danger.” Snyder v. Whittaker Corp.,
839 F.2d 1085, 1092 (5th Cir. 1988).
      Estis argues that the district court erroneously awarded damages for
Sonnier’s pre-death fear and conscious pain and suffering because objective
evidence shows that Sonnier was not conscious after impact and thus did not
suffer. The district court awarded a total of $400,000 for pre-death fear and
conscious pain and suffering, without further delineating between pre-injury
and post-injury survival damages.      As a threshold matter, Estis does not
challenge the district court’s finding of pre-death fear and thus fails to

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challenge one of the predicate injuries supporting the damages award.
Nevertheless, even if he had challenged the finding of pre-death fear, there is
sufficient evidence to support the district court’s finding.          Eyewitness
testimony showed that Sonnier was aware of the danger and running for his
life immediately prior to impact, and photographs from the scene showed that
his body was positioned in such a way that his left arm was raised in a
defensive posture to protect himself.
      As to pre-death conscious pain and suffering, the pathologist who
performed the autopsy on Sonnier testified that Sonnier could have been
conscious and aware for up to five minutes after impact, but was more likely
than not conscious for one to two minutes after impact. Moreover, witness
testimony claimed that Sonnier was alive and gurgling blood shortly after
impact, and the district court appears to have found this testimony credible.
Estis’s attempt to undermine the credibility of the eyewitness testimony based
on prior inconsistent statements is unavailing. See In re Port Arthur Towing
Co., 42 F.3d 312, 318 (5th Cir. 1995) (“[W]eighing conflicting evidence and
inference and determining the relative credibility of witnesses to resolve
factual disputes is the [factfinder’s] province.” (alteration in original) (quoting
Turnage v. Gen. Elec. Co., 953 F.2d 206, 207 (5th Cir. 1992))). We therefore
hold that the district court’s finding that Sonnier was conscious after impact,
the only finding challenged relative to this award, was not clearly erroneous.
         ii. Loss of Past and Future Support
      Estis next argues that the district court erroneously awarded damages
for loss of past and future support. The district court found that damages for
loss of support were appropriate because the totality of the facts, including
testimony from the child’s mother and Sonnier’s father, showed that Sonnier
consistently supported his daughter to the extent he was able to do so. The

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district court then relied on expert testimony to determine the amount
awarded.
       Estis contends that the amount awarded was too speculative and not
supported by competent evidence.             However, the district court found the
methodology used by both experts to be reliable and generally accepted in the
fields of vocational rehabilitation and economics, and Estis does not directly
challenge this finding or point to evidence that otherwise discredits it.
Although Estis asserts that the district court failed to consider Sonnier’s
earnings at the time of his death, the record clearly shows otherwise.
Moreover, the district court limited its consideration of Sonnier’s lost future
earnings to a potential career path related to Sonnier’s prior work experience,
while explicitly rejecting more optimistic scenarios as too speculative.
       Estis’s remaining argument is that an award of damages for loss of
support should be limited to the amount awarded in Sonnier’s rescinded child
support obligation. Estis points to no evidence that Sonnier’s support for the
child was limited to a terminated child support obligation, and likewise cites
no case law, and we are unaware of any, showing that damages for loss of
support must be limited to child support obligations. 3 To the contrary, the
district court found that Sonnier was a devoted father who was committed to
supporting the child to the extent he was able to do so and, except while
incarcerated, provided the primary means of support for the child. Estis has
not shown that this finding was clearly erroneous. Accordingly, we affirm the
judgment as to McBride.


       3 See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 584–85 (1974) (“Recovery for loss
of support . . . includes all the financial contributions that the decedent would have made to
his dependents had he lived (emphasis added)), superseded by statute on other grounds,
Longshore and Harbor Workers’ Compensation Act Amendments of 1972, Pub. L. No. 92-576,
86 Stat. 1263, as recognized in Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
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   B. Touchet’s Damages and Cure Awards
        In challenging the damages and cure awards to Touchet, Estis argues
that the district court erred by awarding cure payments for future medical
expenses and damages for loss of future wages. We address each argument in
turn.
           i. Future Medical Expenses
        The district court ordered Estis to pay future cure until Touchet reaches
maximum medical improvement and $55,185 in future medical expenses
beyond Touchet’s maximum medical improvement.              Estis argues that the
$55,185 award for future medical expenses was erroneous because it requires
Estis to pay future cure payments for an indefinite period of time. It also seems
to argue that the cure payments are erroneous as a matter of law to the extent
they continue beyond Touchet’s maximum medical improvement. We conclude
that this determination was not reversible error.
        “Maintenance and cure is an obligation imposed upon a shipowner to
provide for a seaman who becomes ill or injured during his service to the ship.”
Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). Maintenance
entitles an injured seaman to food and lodging, and cure entitles an injured
seaman to reimbursement for medical expenses and proper treatment and
care. Id. “The maintenance and cure duty terminates only when maximum
[medical improvement] has been reached, i.e., ‘where it is probable that further
treatment will result in no betterment in the claimant’s condition.’”           Id.
(quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
When supported by a physician’s testimony, it is appropriate for a district court
to award future maintenance and cure until the plaintiff reaches maximum
medical improvement. See Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968,

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969–70 (5th Cir. 1978). Moreover, a plaintiff can be awarded both cure and
tort damages for future medical expenses, so long as no duplication will occur,
because the cure obligation is independent of tort law. Boudreaux, 280 F.3d at
468–69; see also Pallis v. United States, 369 F. App’x 538, 545–46 (5th Cir.
2010) 4 (“It is clear from Boudreaux that an award of future medical expenses
is not duplicative of cure because the former sounds in tort while the latter is
a contractual remedy.”).
       A review of the record reveals that, contrary to Estis’s assertion, the
$55,185 award for future medical expenses was not a lump sum future cure
payment but rather a damages award for Estis’s tort liability. The district
court made it clear that cure payments would cease once Touchet reached
maximum medical improvement, and medical treatments thereafter would be
compensated from the $55,185 award for future medical expenses. Indeed,
each time the district court ordered cure payments it explicitly ordered Estis
to pay cure, whereas the judgment awarding future medical expenses makes
no mention of cure payments.
       The future cure payments that the district court did award, however,
were limited to paying for a surgical plan of care and continued psychological
treatments until Touchet reaches maximum medical improvement. Moreover,
the award was appropriately supported by the testimony of Estis’s treating
physicians. Far from being erroneous, the award for future cure “amounts to
little if anything more than a declaration of [Estis’s] undoubted duty to pay
maintenance [and cure] until [Touchet] attains maximum possible cure, a duty
which existed independent of and regardless of the judgment.” See Lirette, 579
F.2d at 970.


       4 Although Pallis is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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         ii. Future Lost Earnings
      Estis argues that the award of damages for lost earnings was clearly
erroneous because a video of Touchet actively engaged in crabbing work proves
that he was not permanently disabled from offshore work. Touchet’s treating
physicians testified that Touchet’s activities on the video were consistent with
his condition but that he was more likely than not permanently disabled from
oilfield work. Based on this testimony, the district court found that Touchet
was permanently disabled. This factual finding was not clearly erroneous.
Accordingly, we affirm the district court’s judgment awarding future cure
payments, future medical expenses, and future lost earnings to Touchet.
      AFFIRMED.




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