            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                       No. 06-30725                             September 17, 2007

                                                                              Charles R. Fulbruge III
                                                                                      Clerk
TERRY LEJEUNE

                                                  Plaintiff-Appellee
v.

TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC

                                                  Defendant-Appellant



                     Appeal from the United States District Court
                        for the Western District of Louisiana
                                USDC No. 6:03-CV-89


Before JOLLY, STEWART*, and CLEMENT, Circuit Judges.
PER CURIAM:**
       Transocean Offshore Deepwater Drilling, Inc. (“TODDI”) timely appealed
a judgment for damages and maintenance and cure. We order a remittitur in
part, reverse in part, and affirm in part.
                     I. FACTS AND PROCEDURAL HISTORY
       While Terry Lejeune was working as a crew member on a drilling vessel
owned by TODDI on January 16, 2002, a valve weighing between 80 and 100

       *
           Judge Stewart concurs in the judgment only.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-30725

pounds fell from a height of four feet onto the top portion of Terry Lejeune’s left
foot. The valve crushed his first metatarsal bone and peroneal nerve. Lejeune
received treatment and, while his fracture was healing well after three weeks,
he reported excessive pain and was diagnosed with a soft-tissue injury. After
continuing to experience excruciating pain, Lejeune sought treatment from a
neurologist who believed Lejeune was suffering from Reflex Sympathetic
Dystrophy (“RSD”), also called Complex Regional Pain Syndrome (“CRPS”). This
condition causes a patient to experience pain disproportionate to the
precipitating injury. Lejeune was treated with a series of nerve blocks but his
pain continued.
      In February 2003, Lejeune’s neurologist concluded that he had reached
maximum medical improvement (“MMI”) and notified TODDI.                 Lejeune’s
physical therapy was terminated and he was instructed to exercise at home.
During the next three months, Lejeune’s condition deteriorated, and the
neurologist conceded that he had prematurely discharged Lejeune.               He
prescribed Neurontin, a nerve pain medication, which Lejeune took in such high
doses that he was unable to function.
      In May 2004, Lejeune sought treatment from an anesthesiologist-
interventional pain physician who ordered the installation of a sciatic nerve
catheter for pain relief. After the installation in February 2005 was determined
to be successful, the anesthesiologist recommended Lejeune get a peripheral
nerve stimulator which is a device that electrically confuses a nerve in order to
suppress pain impulses. After that procedure in May 2005, Lejeune experienced
a significant decrease in pain. The anesthesiologist testified that he was sure
Lejeune would not need crutches for long, and that many patients improve so
much that the stimulator can be removed in a few years.
      Lejeune sued TODDI under the Jones Act and general maritime law.
TODDI’s liability was stipulated, and the case was tried on the issue of damages.


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The district court awarded damages of approximately $1,800,000.00, consisting
of $750,000.00 in general damages for pain and suffering, $899,894.00 in lost
wages, fringe benefits and meals, $190,012.31 in medical costs, and $6600.00 in
retraining costs. The district court further awarded maintenance and cure for
all “physical and psychological conditions” caused by the accident.
      The district court found that Lejeune had not reached maximum medical
cure and listed its reasons for that finding. After making that finding, the
district court commented:
      The Court has been watching Mr. Lejeune very closely during the
      course of this trial, and even when I think he was not aware that I
      was paying attention to him when he was standing out on the front
      steps because my office overlooks that area, this Court has seen Mr.
      Lejeune to be in obvious distress and pain.
      TODDI timely appealed.
                               II. DISCUSSION
A.    Extrajudicial observations
      TODDI argues that the district court’s extrajudicial observations
prejudiced it because it had no opportunity to test the validity and reliability of
the observations. While this issue has not been decided in this circuit before, the
Tenth Circuit reviewed extrajudicial observations by a judge “by the general
standard regarding the erroneous admission of evidence.” Lillie v. United States,
953 F.2d 1188, 1192 (10th Cir. 1992). We take the same approach to this
question as the Tenth Circuit. This court reviews evidentiary rulings for abuse
of discretion. Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1329 (5th Cir. 1996).
If evidence was admitted in error, “[w]e must address whether the error was
harmless.” Polythane Sys., Inc. v. Marina Ventures Int’l., Ltd., 993 F.2d 1201,
1208 (5th Cir. 1993). “We will not disturb an evidentiary ruling, albeit an
erroneous one, unless it affects a substantial right of the complaining party.” Id.




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      The district court’s extrajudicial observations were in error.         It was
improper for the court to make observations, essentially admitting evidence,
without giving the parties the opportunity to challenge that evidence. The issue
to be decided is whether that error was harmless.
      The extrajudicial observation that the court made went solely to Lejeune’s
credibility about whether he continued to suffer from the injury.            Before
commenting on its observation, however, the court had already determined that
the only witness to question Lejeune’s credibility on that issue was
unpersuasive. The court found that the lone doctor’s opinion that Lejeune could
“return to offshore work today [was] beyond the pale.” This finding was based
on the court’s analysis of the testimony of other witnesses and the voluminous
record of Lejeune’s treatments. It is uncertain whether the court relied on its
observation of Lejeune at all or whether it simply made the remark as an aside
to further justify what it had already determined from its analysis of the
witnesses. Even if the court had relied on its observations of Lejeune out of
court, in light of the record and the analysis conducted by the court, its error in
making the extrajudicial observation did not affect a substantial right of
TODDI’s and was harmless.
B.    General damages
      TODDI argues that the $750,000.00 in general damages awarded is
excessive and should be limited to $332,500.00. “A district court’s damages
award is a finding of fact, which this court reviews for excessiveness using the
clear error standard.” Lebron v. United States, 279 F.3d 321, 325 (5th Cir. 2002).
“[W]hen this court is left with the perception that the verdict is clearly excessive,
deference must be abandoned.” Eiland v. Westinghouse Elec. Corp., 58 F.3d 176,
183 (5th Cir. 1995). “[W]e apply the loosely defined ‘maximum recovery rule’
when deciding whether a remittitur is in order. This judge-made rule essentially
provides that we will decline to reduce damages where the amount awarded is

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not disproportionate to at least one factually similar case from the relevant
jurisdiction.” Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1344 (5th Cir.
1990) (emphasis in original). “[T]he maximum recovery rule does not become
operative unless the award exceeds 133% of the highest previous recovery in the
state.” Id. at 1344 n.14. “Because the facts of each case are different, prior
damages awards are not always controlling; a departure from prior awards is
merited if unique facts are present that are not reflected within the controlling
caselaw.” Lebron, 279 F.3d at 326 (internal quotation omitted).
      The district court’s award of $750,000.00 in general damages ($400,000.00
for past damages, $350,000.00 in future damages) is higher than other similar
cases in Louisiana. The driver of a car hit by a cement truck who suffered, as a
result of the accident, from RSD, thoracic outlet syndrome, thrombosis,
depression and post-traumatic stress disorder was awarded $300,000.00 in past
and future general damages. Roig v. Travelers Ins. Co., 694 So. 2d 362, 364, 381
(La. Ct. App. 1996). A plaintiff whose hip was struck by a slot machine door who
suffered from RSD, underwent a ganglion block two and a half years after the
injury to relieve her pain, and whose pain was expected to return, although she
suffered only slight pain in her hand and wrist at the time of trial, was awarded
$60,000.00. LeMasters v. Boyd Gaming Corp., 898 So. 2d 497, 500, 503–05 (La.
Ct. App. 2005). One plaintiff suffered third degree burns on his feet, hands, back
and abdomen which forced him to undergo numerous surgical procedures for
debridement of the wounds, skin grafts, and the amputation of one big toe.
Casanova v. Ballard, 533 So. 2d 1005, 1008 (La. Ct. App. 1988). He was also
being treated for decubitus ulcers at the time of trial and was awarded
$200,000.00 for general damages. Id.
      In Louisiana, $750,000.00 in general damages have been awarded to
plaintiffs such as one who was:



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      severely burned over 25% of his body. Three quarters of the affected
      area received third degree burns while the remainder were deep
      second degree burns. Plaintiff’s right arm was covered in third
      degree burns from his armpit to his wrist. The right arm was
      covered with skin grafts harvested from plaintiff’s thighs. The skin
      harvesting process itself produced injuries not unlike second degree
      burns thereby further intensifying plaintiff’s suffering. Plaintiff
      suffered through two agonizing debridement treatments per day for
      two to three weeks . . . . Plaintiff has suffered permanent scarring
      . . . . [P]laintiff testified concerning the anguish he felt when
      strangers stared at his scars or when children called him a monster.
      Plaintiff suffers from recurring flashbacks, nightmares, and an
      inability to sleep.
Thomas v. State Dep’t of Trans. and Dev., 662 So. 2d 788, 795–96 (La. Ct. App.
1995). Another plaintiff was awarded $750,000.00 in general damages when he
suffered a back injury after jumping from a grain dryer where he was engulfed
in flames. Castay v. ADM Growmark River Sys., Inc., 785 So. 2d 47, 54–55 (La.
Ct. App. 2001). He was hospitalized for ten days, underwent four debridement
procedures, two back surgeries, deterioration of his psychological state, and
continued to suffer “constant and considerable” pain at the time of trial. Id.
      The most factually similar case to Lejeune’s is LeBleu v. Dynamic
Industrial Constructors, Inc., where a trailer tongue fell onto LeBleu’s leg and
fractured his ankle while he was attempting to hitch a trailer to a truck. 526 So.
2d 1184, 1186 (La. Ct. App. 1988).
      After an operation complications arose and the ankle developed
      sympathetic dystrophy resulting in swelling, pain and stiffness. As
      the plaintiff could not use the ankle, atrophy resulted and
      eventually the plaintiff’s knee developed a painful condition called
      chondromalacia. At the time of trial, two years after the accident,
      the plaintiff still had pain and stiffness in his ankle and knee, a
      condition which was aggravated by the fact that the plaintiff had to
      place most of his weight on his only remaining leg. Mr. LeBleu has
      become totally disabled and can walk only with extreme effort and
      for short periods of time. The pleasures of everyday life such as
      gardening, hunting and even driving himself around are no longer
      available to the plaintiff.

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      . . . [T]he plaintiff was also suffering from traumatic neurosis. Once
      an active person with no history of emotional problems, the plaintiff
      was now quiet, withdrawn, despondent, and occasionally suicidal.
      He has also become greatly frustrated, restless and nervous and was
      experiencing great difficulty in adjusting to his lack of mobility.
Id. at 1189. While the court found that LeBleu’s award of $300,000.00 “might
appear to be in the upper permissible range, due to the extenuating
circumstances of the plaintiff’s previously lost leg and the resulting total
disability,” the court affirmed the award. Id.
      The general damages awarded to Lejeune are clearly excessive. While
Lejeune suffered greatly, $750,000.00 in general damages is far higher than the
awards in cases in Louisiana where plaintiffs have suffered similar injuries and
similar long-term pain. His injuries do not rise to the level of those suffered in
Thomas and Castay where Louisiana courts have awarded that amount in the
past. Lejeune’s suffering is similar to that in LeBleu. Lejeune distinguishes his
case from LeBleu by pointing out the substantial differences in medical costs and
that he is thirty years younger than LeBleu.          Such differences are not
convincing. The vast majority of medical expenses in Lejeune’s treatment are
for the purpose of providing physical therapy and reducing his pain and
suffering with the installations of the sciatic nerve catheter and peripheral nerve
stimulator, and battery change for the stimulator. A much higher general
damages award cannot be justified by pointing to much higher compensatory
damages designed to reduce a plaintiff’s pain and suffering. LeBleu’s and
Lejeune’s cases are comparable in the amount of pain and suffering each
experienced. Both experienced similar injuries and both continued to suffer from
pain through the time of trial. As to the differences in Lejeune’s and LeBleu’s
ages, because of the medical treatment Lejeune has received and will continue
to receive, one witness opined that he may eventually do without crutches or the
nerve stimulator. LeBleu had no such improvement and suffered additionally


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because he was already missing one leg before his injury which caused him to
place his weight on the injured leg.
      Thus, as Lejeune’s award of $750,000.00 is more than 133% of the highest
recovery in a factually similar case in Louisiana, LeBleu, the maximum recovery
rule applies. The district court’s general damages award was clear error and is
reversed. This court orders a remittitur of the general damages award to
$400,000.00 which is 133% of the $300,000.00 award in LeBleu.
C.    Lost future wages
      TODDI argues that the district court erred in its award of $744,108.00 for
lost future wages for the foreseeable future because Lejeune would have no
reasonably foreseeable need for medical treatment beyond five years. This court
reviews findings of fact, including damage awards, under the clearly erroneous
standard. Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 121 (5th Cir. 1994).
“Damage awards will not be disturbed unless we are convinced that an error has
been committed.” Id. (internal quotation omitted).
      The district court found that Lejeune was totally and permanently
disabled for the foreseeable future and would, at best, be able to return to
minimum wage employment part-time after five years. TODDI is incorrect to
suggest that the district court’s decision regarding future medical treatment is
at odds with its decision that Lejeune is disabled for the foreseeable future. The
two issues are separate. A patient may cease medical treatment but still have
a permanent disability. There is substantial evidence in the record from a
vocational rehabilitation counselor to support the district court’s finding.
Therefore, this court cannot conclude that the district court’s finding that
Lejeune was disabled for the foreseeable future was clear error.
      The district court’s finding that Lejeune would only return to part-time
work is a closer issue. From the trial transcript, the court’s basis for this finding
was “because [Lejeune] has difficulty sitting for long periods of time.” The court

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consequently asked each economic expert to calculate lost wages based on
Lejeune working part-time. It is unclear what basis the court had for its finding
that Lejeune would only work part-time. Neither vocational rehabilitation
expert concluded that Lejeune would only be able to work part-time. In fact,
Lejeune’s own expert testified that Lejeune would only be capable of “sedentary
work where you sit behind a desk and shuffle paperwork or answer the
telephone throughout the day.”       The expert only testified to part-time work
when asked on redirect whether someone working part-time received benefits.
The court appears to have determined that Lejeune could not sit for long periods
of time based on Lejeune’s own testimony that “I can’t stand too long, the pain
increases, or I sit too long the pain increases. I just got to keep rotating, sitting,
standing, laying down.” However, no vocational rehabilitation expert testified
as to how this would affect Lejeune’s ability to work full-time or part-time.
Thus, there was insufficient evidence to support the district court’s conclusion
that Lejeune would only return to part-time work. The decision was clearly
erroneous and the award for future lost wages is reversed and remanded for
recalculation based on Lejeune’s return to full-time work.
D.    Future cure obligation
      TODDI argues that the future cure obligation, except for those items listed
in the damages judgment for the five-year period after the implantation of the
nerve stimulator, is speculative and the court erred in awarding the obligation.
A district court’s findings of fact in a maintenance and cure decision are
reviewed for clear error and its conclusions of law are reviewed de novo. Silmon
v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996).
      The seaman’s recovery must . . . be measured in each case by the
      reasonable cost of that maintenance and cure to which he is entitled
      at the time of trial, including, in the discretion of the court, such
      amounts as may be needful in the immediate future for the
      maintenance and cure of a kind and for a period which can be
      definitely ascertained.

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Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531–32 (1938). “Since the amount
and extent of maintenance and cure depends upon future developments,
maintenance and cure for the future are ordinarily not awarded in a lump sum.”
Dupre v. Otis Eng’g Corp., 641 F.2d 229, 234 n.6 (5th Cir. 1981) (internal
quotation omitted). A shipowner’s obligation to provide maintenance and cure
to a permanently injured seaman extends until the incapacity is diagnosed as
permanent. Vella v. Ford Motor Co., 421 U.S. 1, 4–5 (1975).
      The district court required the defendant to provide for Lejeune’s physical
therapy and psychological treatment beyond the five years contemplated in the
calculation of medical costs, until Lejeune can make no further improvement or
he no longer requires treatment to prevent his condition from deteriorating.
This court has acknowledged that maintenance and cure amounts may vary
because they depend upon future developments. So, it is not error for the
district court to obligate TODDI to pay an uncertain amount. Nor is it error for
the district court to obligate TODDI for an uncertain period of time, so long as
the end point is ascertainable.
      That Lejeune had not yet reached maximum medical improvement is well-
established in the record. His anesthesiologist testified that Lejeune may no
longer need crutches in the future and that some patients cease needing the
stimulator. Since Lejeune’s incapacity was still not diagnosed as permanent at
the time of trial, the court’s award of the continued cure obligation was proper.
While it is not known when Lejeune will reach maximum medical improvement,
it is a point that can be definitely ascertained. This court does not find that the
district court’s decision is clear error. The district court’s judgment regarding
TODDI’s future cure obligation is affirmed.
      Because TODDI challenged the future cure obligation for an indefinite
period beyond May 2010, this court reviewed the district court’s award of
$124,945.00 for future damages for medical costs. A portion of the future

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damages award, $26,466.00, was for doctor visits until May 2010. This amount
was calculated by estimating Lejeune would visit the doctor four times a year at
a cost of $125.00 to $150.00 per visit. At $500.00 to $600.00 in doctor visits per
year, the present value of future doctor visits for four years should be closer to
an amount of $2400.00, not $26,466.00. The portion of the future damages
award for doctor visits is clearly in error and appears to account for doctor visits
for an unknown period long after May 2010. Beyond May 2010, such costs are
provided for in the future cure obligation. The portion of the future damages
award designated for doctor visits is reversed and remanded for recalculation to
account for doctor visits until May 2010.
                               III. CONCLUSION
      The district court erred in making extrajudicial observations of the
plaintiff, but the error was harmless. This court orders a REMITTITUR of the
general damages award to $400,000.00. The award for future lost wages is
REVERSED and REMANDED for recalculation consistent with this opinion.
The future cure obligation is AFFIRMED. The future damages award for doctor
visits is REVERSED and REMANDED for recalculation of the cost of visits until
May 2010.




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