     Case: 13-30552      Document: 00512497704         Page: 1    Date Filed: 01/13/2014




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


                                    No. 13-30552
                                                                               FILED
                                                                         January 13, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
DEREK HALE,

                                                 Plaintiff - Appellant
v.

OMEGA PROTEIN, INCORPORATED,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-282


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Derek Hale brought an action alleging that his employer Omega Protein
(“Omega”) was liable for injuries Hale suffered when a piece of debris fell from
a fishing net and struck his forearm. After a three-day bench trial, the United
States District Court for the Eastern District of Louisiana ordered Omega to
pay Hale maintenance from November 1, 2009, until the start of the following
fishing season in April 2010, Hale’s medically recommended convalescence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30552
period for the forearm injury.        The district court found that Hale’s knee,
shoulder, neck, and back problems were unrelated to the accident and denied
all other relief. Hale timely appealed. Reviewing the district court’s findings
of fact for clear error and legal issues de novo, 1 we AFFIRM the judgment of
the district court.
      The evidence supports the district court’s determinations that Hale’s
knee, shoulder, neck, and back problems did not result from the piece of metal
that struck his forearm on September 8, 2009 and that Hale failed to establish
that negligence or unseaworthiness played a role in his injury. Where, as here,
findings based on conflicting evidence depend on the credibility of witnesses,
we uphold the district court’s determinations “if based on coherent, internally
consistent, and facially plausible testimony that is not contradicted by external
evidence.” 2 In an admiralty case decided at a bench trial, furthermore, the
district court’s findings of negligence and causation are treated as factual
findings subject to the clearly erroneous standard. 3            A finding is clearly
erroneous when, viewing the evidence in its entirety, we are “left with the
definite and firm conviction that a mistake has been committed.” 4
      But we are left with no such conviction here. Evidence at trial showed
that the sole complaints recorded on the day of the accident were pain in Hale’s
arm and elbow. At a follow-up visit on October 5, Hale reported continued pain
and swelling in his forearm as well as swelling in his right leg, which the doctor
thought could be related to the prolonged swelling in Hale’s arm.                     An
ultrasound of the swelling in Hale’s leg showed no blood clots or abnormalities.
The only medical complaint recorded at follow-up visits on October 23 and



      1 Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000).
      2 Bertucci Contracting Corp. v. M/V Antwerpen, 465 F.3d 254, 259 (5th Cir. 2006).
      3 Id.
      4 Id. at 258-59 (quotations and citations omitted).

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                                 No. 13-30552
October 28 was continued pain in Hale’s right arm. Hale confirmed at an exit
interview at the conclusion of the fishing season on October 31, 2009, that the
only injuries he sustained in the September 8 accident were to his forearm.
      At three additional visits with Hale’s regular physician that November
and December for continuing arm pain, Hale was prescribed additional
physical therapy, paid for by Omega. Hale’s physician expected the arm injury
to heal in time for the beginning of the next fishing season. She also noted that
Hale suffered from lower back pain unrelated to his arm injury. An MRI of
Hale’s spine revealed bulging discs and other abnormalities unrelated to any
“known injury” and similar to MRIs of Hale’s spine before the accident.
      No medical records substantiate Hale’s claim at trial that in the months
following the accident, he reported knee problems, which he now alleges were
caused by falling to his knees when the debris struck his arm. When Hale later
sought treatment for his right knee, an initial MRI appeared to show a torn
medical meniscus and partial tear of the anterior cruciate, but surgery
determined that the defect was actually a congenital plica, or fetal tissue
remnant. The evidence likewise failed to support a causal link between the
fishing accident and treatment Hale later sought for shoulder, neck, and back
problems, and suggests instead a causal link with a motor vehicle accident that
Hale had suffered in the past.
      Nor do we find fault with the district court’s determination that Omega
was not negligent under the Jones Act and F/V CHAUVIN was not
unseaworthy. Credible witnesses testified that the net was being operated at
a customary rate of speed that was not excessive for the day’s ordinary fishing
conditions, and like the district court we see no causal significance to evidence
that Captain Mitchell was aware of a tear in the net but did not slow the net
retrieval speed on the mate’s boat. The piece of metal debris that got caught
in the net and fell on Hale’s forearm was a sudden and extremely rare
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                                  No. 13-30552
occurrence that could not have been prevented with reasonable care. Hale
presented no evidence of unseaworthiness.
        Although we sympathize with the extent of medical infirmities that have
befallen Hale, we find no error in the district court’s determinations that
Omega already provided maintenance and cure for those ailments related to
the fishing accident. To the extent the district court ordered Omega to pay
Hale maintenance in the total amount of $1,500.00 for an additional five
months of convalescence for the forearm injury, we find no willful or wanton
callousness on Omega’s part that would justify punitive damages or attorney’s
fees.
        For these reasons, we AFFIRM.




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