      Case: 18-31071          Document: 00515098159              Page: 1      Date Filed: 08/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                               United States Court of Appeals

                                            No. 18-31071
                                                                                        Fifth Circuit

                                                                                      FILED
                                                                                August 29, 2019

MANSON GULF, L.L.C.,                                                             Lyle W. Cayce
                                                                                      Clerk
                 Plaintiff - Appellant

v.

ANGIE LAFLEUR, Widow of James LaFleur and on behalf of minor children
L.L., D.L., and B.L.,

                 Defendant - Appellee

---------------------------------------------------------------------------------------------------

In re: In the Matter of Manson Gulf, L.L.C., as Bareboat Charterer of the
Barge Marmac 262, for Exoneration from or Limitation of Liability

MANSON GULF, L.L.C., as bareboat charterer of the barge Marmac 262,

                 Petitioner - Appellant

v.

ANGIE LAFLEUR, Widow of James LaFleur and on behalf of minor children
L.L., D.L., and B.L.,

                 Claimant - Appellee



                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:15-CV-3627
                                USDC No. 2:15-CV-6860
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                                      No. 18-31071
Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
       This case comes to us for the second time; the first time, we reversed the
district court’s grant of summary judgment in favor of the cargo company,
Manson Gulf, L.L.C. (“Manson”), and against the family of the decedent (the
“LaFleur Family”) and remanded. See Manson Gulf, L.L.C v. Modern Am.
Recycling Serv., Inc., 878 F.3d 130, 133 (5th Cir. 2017). Upon remand, the case
was tried before the district judge, and the LaFleur Family prevailed. Manson
now appeals.
                                     I.     Background
       James LaFleur worked as an independent consultant for Modern
American Recycling Service, Inc. (“MARS”). MARS dismantles steel structures
and sells the metal for scrap.            As part of its business, it often acts as a
stevedore, contracting to load or unload cargo from ships.
       One of MARS’s jobs was to dispose of an oil drilling platform, the BA A-
23-A, dismantled by Manson. Manson had removed the platform in two main
sections, and due to corroded pad eyes on the platform, was required to lift the
north section of the platform by wrapping chains around the legs of the
platform section. It also had to cut holes in the platform grating to pass chains
through the deck.
       When Manson shipped the platform to MARS, Manson informed MARS
that there was potentially oil or other dangerous fluids present. It did not,
however, tell them about the location or size of the holes it cut in the platform




       * 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. 18-31071
to transport it. Nor did Manson mark or cover the hole through which LaFleur
fell.
         A MARS employee, Jeffrey Smith, performed an initial inspection of the
platform, and he called LaFleur up to help him. LaFleur was specifically called
on to assess the potentially dangerous fluids, but also was expected to look out
for other dangers. While LaFleur and Smith inspected lines for fluid, LaFleur
stepped into one of the unmarked, uncovered holes that Manson made for
transport. He fell fifty feet. Though LaFleur was initially conscious for about
fifteen minutes until the paramedics arrived, he later died. The LaFleur
Family sued Manson, and Manson filed a suit for exoneration from or
limitation of liability under 33 U.S.C. § 905(b). After the first appellate panel
reversed the summary judgment in favor of Manson, the parties proceeded to
trial focusing on two core issues: whether the hole LaFleur fell through was
obvious or anticipatable by him and whether LaFleur bore any fault for the
fall.
         Prior to trial, the district court excluded Manson’s expert, William
McCarty (“McCarty”), from testifying. After hearing the other evidence, the
district court ruled in favor of the LaFleur Family and entered judgment in
excess of $4 million. Manson appealed.
                 II.     Jurisdiction and Standard of Review
         The district court had admiralty jurisdiction over Manson’s original
contractual claim under 28 U.S.C. § 1333. It had jurisdiction over Manson’s
exoneration and limitation claims under 46 U.S.C. § 30508.              We have
jurisdiction over the appeal as a final decision under 28 U.S.C. § 1291.
         We will not reverse a district court’s admission or exclusion of expert
testimony unless the decision is “manifestly erroneous.”        United States v.
Norris, 217 F.3d 262, 268 (5th Cir. 2000) (quoting Watkins v. Telsmith, Inc.,
121 F.3d 984, 988 (5th Cir. 1997)). After a bench trial, we review factual
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                                     No. 18-31071
findings for clear error and legal conclusions de novo. See Steele v. Leasing
Enters., Ltd., 826 F.3d 237, 242 (5th Cir. 2016). Thus, we can reverse under
the clear error standard only when we have a “definite and firm conviction that
a mistake has been committed.” Jauch v. Nautical Servs., Inc., 470 F.3d 207,
213 (5th Cir. 2006) (per curiam) (quoting Anderson v. City of Bessemer, 470
U.S. 564, 573 (1985)).
                              III.    Discussion
        Manson raises several points on appeal that can be grouped into four
categories: (1) Was the decision to exclude McCarty reversible error? (2) Did
the district court err in finding Manson liable to the LaFleur Family? (3) Did
the district court erroneously exclude personal consumption from future
earnings for its damage calculations? (4) Did the district court err in awarding
prejudgment interest on future damages? We AFFIRM on the first three issues
and VACATE and REMAND on the fourth.
   A.     Exclusion of Expert Testimony
        The LaFleur Family sued Manson under 33 U.S.C. § 905(b), which
permits stevedores to sue a vessel for negligence. As the Supreme Court has
explained, vessels have a turnover duty and a related duty to warn. See
Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994). “A vessel must
‘exercise ordinary care under the circumstances’ to turn over the ship and its
equipment and appliances ‘in such condition that an expert and experienced
stevedoring contractor, mindful of the dangers he should reasonably expect to
encounter, arising from the hazards of the ship’s service or otherwise, will be
able by the exercise of ordinary care’ to carry on cargo operations ‘with
reasonable safety to persons and property.’”           Id. (quoting Fed. Marine
Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 417 (1969)). The vessel
thus has a duty to warn a stevedore of any hazards which “‘are known to the
vessel or should be known to it in the exercise of reasonable care,’ and ‘would
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                                      No. 18-31071
likely be encountered by the stevedore in the course of his cargo operations[,]
are not known by the stevedore[,] and would not be obvious to or anticipated
by him if reasonably competent in the performance of his work.’” Id. at 98–99
(brackets in original). The LaFleur Family asserted that Manson violated its
turnover duty by failing to warn MARS and LaFleur about the hole.
        The parties dispute whether the hole was “obvious” or “anticipatable” by
a competent stevedore. Manson contends that McCarty offered relevant expert
testimony supporting Manson’s argument that LaFleur should have
discovered the hole.
        As mentioned above, the standard for assessing expert testimony
exclusion is highly deferential to the district court. The standard is even more
deferential when the case is tried without a jury. See S. Pac. Trans. Co. v.
Chabert, 973 F.2d 441, 448 (5th Cir. 1992) (“A trial judge sitting without a jury
is entitled to greater latitude in the admission or exclusion of evidence.”);
United States v. Roberts, 887 F.2d 534, 536–37 (5th Cir. 1989) (finding
harmless error under less deferential criminal case standard where expert
testimony was wrongly excluded in a bench trial case); see also Wu v. Miss.
State Univ., 626 F. App’x 535, 537 (5th Cir. 2015) 1 (per curiam) (any error in
admitting or excluding expert testimony is subject to the harmless error rule).
In reviewing McCarty’s proffered report, it is filled with generalities and
conclusory allegations. Thus, even if the testimony was admissible, any error
in excluding it was harmless such that no reversible error has been shown.
   B.       Sufficiency of the Liability Evidence
        Manson argues the district court erred in four ways in concluding that
Manson was liable. First, it argues the district court incorrectly applied legal



        “An unpublished opinion issued after January 1, 1996 is not controlling precedent
        1

but may be persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
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                                  No. 18-31071
standards and made clearly erroneous findings to determine the hole was an
“obvious” condition. Second, it argues the district court incorrectly applied
legal standards and made clearly erroneous findings to determine that a
“reasonably competent” stevedore would not anticipate the hole. Third, the
district court erred by issuing findings of fact that quote from this court’s
previous opinion in the case; the facts recited were part of the summary
judgment record but not the trial record. Fourth, the district court clearly
erred by finding LaFleur free from fault.
        The evidence supports the conclusion that the hole was not “obvious” and
could have been missed even by a “reasonably competent” stevedore. There
was evidence that the hole was hard to see. Further, the district court assessed
the evidence that Manson “typically” marked holes and actually marked other
holes combined with the difficulty of seeing this hole to conclude that a
“reasonably competent” stevedore could have missed this one. While it is true
that the district court included some quotes from our prior opinion in this case,
the evidence there cited was presented at trial, albeit in slightly different
words. Finally, while the court could have found fault on LaFleur, there was
evidence to support the finding of no fault. We affirm the finding of liability
against Manson.
   C.      Damages
        Turning to damages, Manson claims that the district court did not deduct
personal consumption expenses from future earnings. While the district court
used imprecise language, it is clear that it relied upon the expert evidence
which, in turn, subtracted the personal consumption amounts. Though the
experts disagreed on the exact inputs to calculate damages, each used the same
basic components: LaFleur’s lost earnings to the date of trial; his future
earnings; a reduction of his future earnings for personal consumption and
taxes; and a discount to calculate the present value of his future income. Using
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                                         No. 18-31071
those components, Manson’s expert calculated a range of economic loss
between $430,102.71 and $627,116.16. 2 Using those same components, but
with different assumptions, the LaFleur Family’s expert calculated a range
between $580,160.00 and $826,525.00. The district court awarded an amount
within the latter range. We conclude that this award was not error and affirm.
   D.         Prejudgment Interest
        Manson notes that the district court awarded prejudgment interest on
all damages. Though those damages were reduced to present value, they
combine previously accrued damages with future damages.                              We have
previously held that prejudgment interest may not be awarded for future
damages in admiralty cases like this one. See Couch v. Cro-Marine Transp.,
Inc., 44 F.3d 319, 328 (5th Cir. 1995). Our remedy has been that we vacate the
interest award and remand for the district court to determine what proportion
of the award is past damages versus future damages. Id. Consequently, we
VACATE the district court’s award of prejudgment interest and REMAND to
reassess the interest.
        AFFIRMED in part; VACATED and REMANDED in part.




        2   The range is based off of the combination of past and future earnings.
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