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Breaking Legal Developments

03-27-2013

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Ship Explosion Verdict upheld by Louisiana Court of Appeals, Fourth CIrcuit


(1) SHIP EXPLOSION VERDICT UPHELD BY LOUISIANA COURT OF APPEALS, FOURTH CIRCUIT

In Cooper v. Bouchard, et al, Court of Appeals of Louisiana, Fourth Circuit, http://la4th.org/opinion/2012/327703.pdf, March 27, 2013, the court reviewed a jury verdict in favor of the plaintiff, Kelsey Cooper, for injuries he sustained while working aboard the M/V ROBERT J. BOUCHARD. The jury found Marine Systems, Inc. (MSI) and Bouchard Coastwise Management Corp., Bouchard Transportation Co., Inc., Tug Robert J. Bouchard, Inc. and Interested Hull Underwriters (collectively Bouchard) equally liable for Mr. Cooper's damages. MSI and Bouchard appealed the judgment and the plaintiffs filed an answer and cross appeal. For the reasons that follow, the court affirmed in part; reverse in part.

Mr. Cooper was the chief engineer aboard the ocean-going tug ROBERT J. BOUCHARD when the main engine failed causing an explosion and fire in the engine room. As a result of the explosion, Mr. Cooper suffered third degree burns to 32% of his body and second degree burns to 4% of his body. The severity of Mr. Cooper's injuries required approximately 28 surgeries and extensive physical therapy. Bouchard was the owner and operator of the ROBERT J. BOUCHARD at the time of the explosion. The failed engine, which caused the explosion, had been overhauled and serviced by MSI using remanufactured parts supplied by WRI. Subsequent to the original overhaul, MSI serviced the engine in April and November of 2004. The November 2004 service occurred just three months before the explosion. Following the explosion, suit was filed against Bouchard, MSI, and WRI. Additionally, Bouchard filed cross claims against MSI and WRI for damages to its tug.

During trial, several theories were presented to establish the cause of the engine failure: 1) Bouchard's failure to properly maintain and service the engine; 2) MSI's failure to properly assemble and test the engine; and/or 3) WRI's failure to properly remanufacture the engine parts in keeping with specifications. When the trial on the merits concluded, all claims against WRI were dismissed with prejudice. Judgment was rendered in favor of Mr. Cooper and against MSI and Bouchard for $7,248,935.2 There was also judgment in favor of Bouchard on the cross claim against MSI.3 Appeals and cross-appeals were filed by Bouchard and MSI, and the plaintiffs answered MSI's appeal.

On appeal, MSI asserted assignments of error for the Court to review: 1) the jury's finding that MSI was liable for the explosion was contrary to both the law and the evidence. Bouchard asserted that 1) the jury's 50% fault to Bouchard was not supported by the record. As cross-appellant, the Plaintiffs contended that the jury erred in only assessing 50% fault to MSI.

The jury found, after being presented nine days of testimony and evidence, negligence on the part of MSI and Bouchard; and concluded that they shared liability for Mr. Cooper's damages equally. Both MSI and Bouchard take issue with the jury's allocation of fault. The Court applies the manifest error standard of review to the fact finder's determination of whether or not a party has borne his burden of proof by a preponderance of the evidence. See Hall v. Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90. On review, a "court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong,'" and "where two permissible views of the evidence exists, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart v. State, 617 So.2d 880, 882-83 (La.1993).

Following the tragic explosion that nearly killed Mr. Cooper, the ROBERT J. BOUCHARD was towed to a shipyard in Staten Island, New York. Once at the shipyard, Bouchard began its investigation into the cause of the engine failure and explosion. To lead the investigation, Bouchard retained diesel engine expert, Lee Swanger, Ph.D. Bouchard also requested the presence of MSI's lead service representative, Skeeter Bailey. At that time, Mr. Bailey was evaluating the damages to formulate a cost estimate to rebuild the engine.

Together, Dr. Swanger and Mr. Bailey identified parts, took photographs, and pulled parts out of the engine. The parts that were removed from the engine were placed into a container that was stored in a Bouchard warehouse. Mr. Bailey accessed the box shortly after it had been stored to further examine the parts and to take additional photographs. Unfortunately, over the course of the litigation certain key parts of the engine went missing.

During his initial investigation, Dr. Swanger identified fatigue fractures in the "slipper foot" of the number two connecting rod, which he opined was a possible cause of the engine's failure. He found that the "heel" and "tow" of the "slipper foot" broke away from the shaft of the connecting rod. Dr. Swanger's testimony related this type of engine failure to "geometric mismatch" of the engine's components, which was either caused by an improper curvature of the connecting rod or mismatching of parts and improper assembly. He explained that an improper curvature in the connecting rod would have occurred during the remanufacturing of the rod, while the faulty mismatch of the parts would occur during the assembly of the engine.

Dr. Swanger testified as to actions that could have been taken by MSI in the assembly stage of the overhaul to identify a geometric mismatch of the engine's components. Although he claimed that the geometric mismatch could occur from an incorrectly remanufactured rod or improper installation, Dr. Swanger's testimony was clear that there were tests that could have been performed by MSI to ensure the surfaces of the components were touching in the appropriate places.6 His opinion was that "it is incumbent upon the organization or the person who is assembling an engine out of machined parts, purchased parts, reused parts-It's incumbent on that person to do all the checking." Through the testimony of MSI's representative, Mr. Bailey, the jury was informed that the tests suggested by Dr. Swanger were not performed by MSI's mechanics. Trial testimony also established that customarily, such overhauls last for 28,000 to 30,000 usage hours. The engine at issue in this litigation exploded at approximately 14,000 usage hours.

The plaintiffs' other expert, Thomas Shelton, Ph.D, referred to the cause of the engine failure as "geometric misalignment". He claimed that the geometric misalignment lead to a lubrication issue which resulted in the engine exploding. Dr. Shelton opined that the failure occurred in the number two cylinder and was either caused by improper installation of the basket assembly and/or a defect in the blade rod or upper shell bearing. He did however state that he was unable to determine which of the two were more probable, due to the extent of the mechanical damage. Nevertheless, Dr. Shelton was also of the opinion that MSI was in the best position, as the assembler, to identify the problem.

MSI presented expert marine surveyor, Paul Deister, to testify on its behalf as to the cause of the engine failure. Mr. Deister's theory was based on lubrication issues brought about by a misalignment of engine components caused by engine vibrations that lead to engine bolts backing out of their component parts. The component part that the bolts backed out of is known as the "P-pipe" or "P-tube", which is a small pipe or tube that sprays oil into the cylinder. Although he concluded that in his opinion that the condition developed because Bouchard did not comply with industry standard maintenance requirements, he also admitted that MSI should have noticed signs of engine vibration when the engine was serviced at 9500 hours in April 2004.

By deposition, MSI offered the testimony of Geoff Webster. Mr. Webster's opinion was that faulty lubrication in the number two cylinder caused by either contaminated oil clogging the engine's P-pipe or the complete loosening and misdirection of the P-pipe itself caused the engine to fail. His testimony suggested global oil failure due to negligent maintenance or operation on the part of Bouchard. That notion was discredited by Mr. Deister, MSI's other expert. Mr. Deister did, however, testify that in his opinion, Bouchard did not properly keep up with the industry standard maintenance requirements.

In Louisiana, the fact finder is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. See, Lightell v. Couvillion, 99-1597 (La.App. 4 Cir. 2/16/00), 757 So.2d 39. The fact finder may accept or reject in whole or in part the opinion expressed by an expert. Green v. Mart Corporation, 03-2495, p. 5 (La. 5/25/04), 874 So.2d 838, 843(citing Lirette v. State Farm Ins. Co., 563 So.2d 850, 855 (La.1990)). The effect and weight to be given expert testimony is within the broad discretion of the fact finder. Gulf Outlet Marina, Inc. v. Spain, 02-1589, p. 13 (La.App. 4 Cir. 6/25/03), 854 So.2d 386, 394 (citing Williams v. Rubicon, 01-0074 (La.App. 1 Cir. 2/15/02), 808 So.2d 852.).

A review of the record in this matter indicates that the jury was presented with sufficient testimony and evidence to create a reasonable basis for the verdict. The evidence established that, as the owner and operator of the tug, daily maintenance and periodic inspections would be Bouchard's responsibility, while more comprehensive inspections were performed by MSI. Further, it is undisputed that neither party identified a problem with the engine prior to its failure, which resulted in the explosion. The Court found that the jury was reasonable in its determination that Bouchard and MSI were negligent, and further finding that each party bore 50% of the liability. In light of the evidence and testimony presented, there is a reasonable factual basis for those findings and they will not be disturbed on appeal.

For the reasons discussed, the Court affirmed the award of damages in favor of Mr. Cooper and against Bouchard and MSI. This Court reversed the jury's finding regarding Bouchard's claim for reimbursement against MSI for the payment of maintenance and cure and render judgment in favor of Bouchard and against MSI in the amount of $623,750.53. In all other respects, the judgment was affirmed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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