* * * * * * * * BELSOME, J., CONCURS IN PART AND DISSENTS IN PART. I respectfully concur with the majority s finding that Mr. Parfait was entitled

TERRELL PARFAIT VERSUS TRANSOCEAN OFFSHORE, INC., AND SHELL OIL PRODUCTS CO. NO. 2004-CA-1271 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA BELSOME, J., CONCURS IN PART AND DISSENTS IN PART. I respectfully concur with the majority s finding that Mr. Parfait was entitled to a jury trial. Additionally, I respectfully concur with the majority s decision to absolve Shell of liability, pursuant to the jury s determination that the Rather was seaworthy. With regard to the majority s determination that the trial court s limitation of the cross-examination of Mr. Parfait s experts did not amount to reversible error, I respectfully concur. Likewise, I respectfully concur with the majority s decision that the presentation of evidence of other drilling projects by Mr. Parfait was harmless error, if any. Finally, I also respectfully concur with the majority s finding that the jury s determination that the Rather was seaworthy had no effect with regard to the jury s finding of negligence on the part of Transocean. The majority correctly holds that a reasonable basis exists upon which the jury could have found that Transocean acted negligently, as Jones Act negligence and unseaworthiness are separate and distinct causes of action with differing standards of proof, a principal that has been recognized by both the United States and Louisiana Supreme Courts, as well as this Court. See, e.g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed. 2d 562 (1971); Griffin v. LeCompte, 471 So.2d 1382, 1387 (La.1985); Wright v. Ocean Drilling and Exploration Co., 461 So.2d 1084,

1089 (La.App. 4 Cir. 1984)( Theories of unseaworthiness and negligence are two separate and distinct basis of liability....`[i]n view of the decisions in this court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. )(quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 551, 80 S.Ct. 926, 932-933 (1960))(emphasis in original). 1 Accordingly, without delving into the extremely speculative issue of whether or not handrails should have been installed on the elevated platform, it is clear that the jury could have determined that Transocean acted negligently in any number of ways, thereby causing and subsequently exacerbating Mr. Parfait s injuries, independently of any issues regarding the Rather s alleged unseaworthiness. For instance, Anthony Dorsey, the assistant driller on duty the day Mr. Parfait suffered his injuries, testified at trial that he had previously performed work with tongs from the vessel floor rather than from the elevated platform; thus, the jury could have determined that Transocean was negligent in failing to instruct Mr. Parfait as to a method by which the tongs could be operated from the floor rather than from the elevated platform, or that Transocean was negligent in failing to establish a means by which Mr. Parfait could perform his work on the deck level, as opposed to the added hazard of operating the tongs from the elevated platform. 2 1 Other examples of courts upholding this principle are as follows: Olsen v. American S.S. Co., 176 F.3d 891, 894, 2000 A.M.C. 90 (6th Cir. 1999)(stating that a seaman has three causes of action available to him: first, an action for maintenance and cure; second, an action for unseaworthiness; and third, a negligence action under the Jones Act); Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 100 (5th Cir. 1985)(finding that [w]hile the facts that give rise to unseaworthiness claims sometimes support Jones Act negligence claims, each is a distinct claim ); Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982)( Jones Act negligence and unseaworthiness are two separate and distinct claims....this court recognizes [these] two different standards of causation. ); Watson v. Oceaneering Intern., Inc., 387 F.Supp.2d 385, 390 (D. Del. 2005)( Under the Jones Act, a seaman can maintain a cause of action where an employer's failure to exercise reasonable care causes a subsequent injury even where the employer's negligence did not render the ship unseaworthy. )(quoting Ferrara v. A&V Fishing, Inc., 99 F.3d 449, 453, 2005 A.M.C. 2762 (1st Cir. 1996)) (emphasis added). 2 Upon direct examination by Darryl Phillips, Mr. Dorsey s testimony regarding his experience working with tongs from the deck or vessel floor is as follows (emphasis added):

The jury also could have concluded that Transocean acted negligently by not providing or requiring Mr. Parfait to wear a safety harness (or some other type of fall arrest device) on the platform, which the jury could have determined was not an appurtenance to the vessel and therefore did not have any effect on the Rather s seaworthiness. Additionally, the jury could have found that Transocean was negligent in ordering Mr. Parfait to perform his duties from the workstands when he had not previously worked with tongs on an elevated platform, although he had been employed with Transocean for approximately three years. Finally, the jury could have also determined that Transocean s insistence upon returning Mr. Parfait to the vessel immediately following his surgery, rather than allowing him to remain under a physician s care in the hospital until he fully recovered, played a significant role in his subsequent infection and resulting surgeries. 3 Therefore, the Q: Okay. Isn t it ---isn t it easier to operate and to latch the pipe if you re doing it on the deck level and not on an elevated surface? A: I think it takes the same amount. Personally, having operated tongs myself, it takes the same amount of force. Q: Not force. Let s talk about the ability to do the job. I mean, if you re ---if you re working from a platform that s four feet high, you ve got to watch out for the edge, [be]cause there are no there are no railings around this thing, am I correct, sir? A: You re correct. Q: Okay. So, you ve got to not only operate the tong, you ve got to watch out for stepping on the edge, right? A: That s correct. Q: So, if --- but if you re on the deck, or floor, if you re on the deck you don t have to worry about that, you can move around with relative safety, correct? A: That s correct. Q: The elevated platform creates an additional hazard, a fall hazard, doesn t it? A: That s correct. Q: Okay. And it s safer to do the job...from the deck, rather than doing it from the elevated platform? A: I won t argue with that. Q: Okay. A: I agree with that. 3 The jury could have also determined that Transocean, by transporting Mr. Parfait back to the vessel in an apparent effort to avoid reporting a lost time accident, failed in their duty to take reasonable care under the circumstances and therefore acted negligently by exacerbating Mr. Parfait s injuries. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-336 (5 th Cir. 1997)(holding that pursuant to the Jones Act, the duty of care owed by an employer to an employee is the duty to take reasonable care under the circumstances). We also note that no physician attended to Mr. Parfait when Transocean returned him to the Rather immediately after his surgery; the vessel only had a medic on board for this purpose.

jury could have and likely did find that Transocean was negligent for numerous reasons other than the presence or absence of handrails on the elevated platform; indeed, the jury s finding that the Rather was seaworthy supports this position. For this reason, I also agree with the majority s application of Brunner v. Maritime Overseas Corp., 779 F.2d 296 (5 th Cir. 1986) to the facts of this case. Like Brunner, in the case sub judice, a vessel owner s negligence and lack of reasonable care resulted in an unsafe condition, which caused an employee s injuries. Simply because Mr. Parfait s fall was not the result of an injury-causing foreign substance, the findings of Brunner are not thereby rendered inapposite, as the other dissenting opinion asserts. Likewise, I disagree with the dissent s assertion that the majority s application of Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 1997 A.M.C. 1521 (5th Cir. 1997) to the instant case is erroneous. Negligently failing to properly train an employee, the plaintiff s allegation in Gautreaux, is analogous to negligently instructing an employee who has not previously operated tongs from an elevated platform to do so when the same operation could have been performed from the floor. Moreover, in Gautreaux, the Fifth Circuit affirmed a determination of damages that was the result of a jury s finding that the vessel on which Mr. Gautreaux worked was seaworthy, but that his employer was negligent, precisely the scenario in the instant case. 4 Gautreaux, 107 F.3d 331, 339. It is unclear why the dissenting opinion asserts that Gautreaux stands for the proposition that the standard of care to be attributed to either an employer or an employee [in a Jones Act case of negligence] is [not] anything different than ordinary prudence under the circumstances, ; the majority s opinion does not dispute this proposition. 4 The Court in Gautreaux affirmed the district court s determination of the amount of damages, vacated the district court s judgment as to comparative fault (the jury assigned 95% of the fault to Mr. Gautreaux s employer and 5% of the fault to Mr. Gautreaux), and remanded the case for a determination of the comparative fault, if any, of Mr. Gautreaux. Gautreaux, 107

Finally, the dissenting opinion erroneously maintains that the resolution of the instant case turns on the vessel s lack of handrails coupled with the jury s finding of seaworthiness; to the contrary, the crux of this case involves negligence on the part of Transocean that caused and subsequently exacerbated Mr. Parfait s injuries, and not the presence or absence of handrails. With respect to the issue of damages, I respectfully dissent from the majority s decision to drastically reduce the award for general damages. It is a well-settled principle under Louisiana law that the factfinder is vested with wide discretion with regard to an award for general damages, and that such awards are not to be disturbed on appeal absent an abuse of that vast discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993). In Youn, the Louisiana Supreme Court observed: The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id. The majority s opinion that despite [Mr. Parfait s] physical and emotional constraints, 5 he is able to perform the daily activities of his life, including dressing, bathing and feeding himself, cooking, cleaning and driving a vehicle and that Mr. Parfait has been able to maintain a relationship with his fiancée and actively participate in the lives of his three children is not a sufficient basis upon which to drastically reduce the jury s $1,000,000 award for general damages to a mere $300,000. Louisiana jurisprudence clearly dictates that appellate courts may F.3d at 339 (emphasis added). It should be reiterated that the jury apportioned 0% of the fault in this case to Mr. Parfait, a finding which neither Shell nor Transocean appealed. 5 The majority specifically acknowledges that Mr. Parfait will continue to suffer pain and discomfort for the rest of his life ; that he will be limited to sedentary activities ; that in

only reduce an award for general damages when the award is higher than an amount which a reasonable factfinder could determine for the effects of the particular injury to the particular plaintiff under the particular circumstances of the case. Reck v. Stevens, 373 So.2d 498, 501 (La. 1979); Suire v. LCS Corrections Services, Inc., 2005-1332, pp. 5-6, (La.App. 3 Cir. 2006), 930 So.2d 221, 226. 6 The majority has cited no authority to support its assertion that the jury s award in this case is beyond that which any rational finder of fact could have determined to be appropriate under these particular circumstances. Therefore, I cannot agree that the jury abused its discretion in making the general damages award, and would accordingly let the $1,000,000 award stand. Finally, I respectfully dissent from the majority s determination that the trial court erred in excluding evidence related to Mr. Parfait s previous injury. It is within the trial court s discretion to exclude evidence if its prejudicial value outweighs the probative value, even if the evidence is relevant. See, e.g., Hebert v. addition to being permanently physically disabled, Mr. Parfait cannot participate in his favorite activities, fishing, hunting, and bowling; and that Mr. Parfait suffers from acute depression. 6 Moreover, this Court, in Harvey v. Cole, 2000-1849, p. 15-16 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 782-783, a suit resulting from injuries sustained in an automobile accident by three plaintiffs, upheld all general and special damages awarded to plaintiff Randolph Polk. The awards totaled $2,075,858.00 for back, knee and neck injuries that Mr. Polk sustained in the accident. Id. Regarding the extremely large award, this Court stated: we find that the awards for general damage awards [sic], although very high, are not so excessive as to constitute an abuse of the great, even vast, discretion afforded to the trier of fact in the assessment of general damages. Id. (emphasis supplied). As a result of the accident, Mr. Polk had one lumbar fusion surgery, suffered a cervical herniated disc and torn lateral meniscus in the right knee, and incurred a 15 to 20 percent total body disability as a result of the accident. Id. In Mr. Parfait s case, he also suffered a torn medial meniscus, but not only in one knee, as did Randolph Polk, but in both knees. Mr. Parfait underwent not one surgery, as did Mr. Polk, but five surgeries on his wrist, in addition to undergoing extensive physical therapy. Moreover, the majority specifically acknowledges that Mr. Parfait is totally and permanently physically disabled, not 15 to 20 percent disabled, as Mr. Polk was in Harvey. By any standard, Mr. Parfait suffered greater injuries and pain and suffering, as well as complete and total disability, than did the plaintiff in the Harvey case, wherein this Court did not hesitate to uphold an award in excess of two million dollars. Finally, it is important to note that this Court in Harvey upheld all general and special damages awarded to each of the three plaintiffs, reducing only a general damage award to plaintiff Leroy Treadwell because he did not establish through medical testimony that the herniated discs in his cervical spine were related to the....accident, Id.; such is not the scenario in the instant case. Accordingly, the same deference should accordingly be afforded the trial court in this case, and the general and special damages rightfully awarded to Mr. Parfait should remain undisturbed.

Angelle, 600 So.2d 832 (La.App. 3 Cir. 1992); La. Code Evid. art. 403. Additionally, the cases cited by the majority in support of their contention that the trial court erred by excluding evidence regarding Mr. Parfait s prior injury and claims are inapposite to the facts of the instant case. First, the majority notes that Ronquillo v. Belle Chase Marine Transportation, Inc., 629 So.2d 1359, 1362 (La.App. 4 Cir. 1993) stands for the proposition that evidence regarding prior claims and injuries may be admissible for credibility purposes and/or to establish a causal relationship between the present disability and the previous accident. In this case, Mr. Parfait did not claim that any of his injuries on the Rather aggravated or were related to any of the injuries from his previous accident. Moreover, Mr. Parfait was not suffering from depression at the time of the accident. Finally, Mr. Parfait was not, as was the Plaintiff in Ronquillo, undergoing treatment for any of his previous injuries at the time of the accident on the Rather. Ronquillo, 629 So.2d at 1361. Additionally, the physicians who evaluated the Plaintiff in Ronquillo offered conflicting views as to whether or not the Plaintiff s depression had resolved prior to the injury at issue. Id. at 1363. This Court ultimately concluded in Ronquillo that [t]he jury could have believed that plaintiff s psychological injury his depression was a life-long condition. Id. at 1364. Thus, it is equally likely that the jury in this case found that Mr. Parfait s depression was not a life-long condition, but that it had, in fact, been resolved subsequent to treatment for his prior injuries, and that he would not have suffered from depression again but for his injuries sustained on the Rather. Likewise, Paige v. Guidry, 506 So.2d 854, 857 (La.App. 1 Cir. 1987), the other case cited by the majority, can also be distinguished from the facts of the case at bar. In Paige, the Plaintiff submitted claims for the same medical expenses that had been submitted for recovery in two prior settlements, clearly putting the Plaintiff s credibility at issue. By contrast, Mr. Parfait s physical injuries resulting

from his fall on the Rather were completely separate from his previous injuries; he made no duplicative claims in this case that would put his credibility at issue. With regard to his psychological injuries, as previously noted, the jury could have concluded that his depression had resolved itself prior to his injuries on the Rather, as he was not being treated for depression at the time of his accident on the Rather. Therefore, I agree with the trial court s holding that evidence of Mr. Parfait s prior injuries would have been unfairly prejudicial; accordingly, I do not believe that the trial court erred in granting Mr. Parfait s motion in limine excluding evidence of Mr. Parfait s prior accident and disability. Additionally, because I do not agree that the trial court committed legal error, I do not agree that a de novo review of the record is necessary in this case. Likewise, I respectfully dissent from the majority s reduction of Mr. Parfait s future medical expenses and future wage loss awards; I cannot say that the jury was manifestly erroneous in making these awards. The majority notes that Mr. Parfait s expert, Dr. Rice, estimated that Mr. Parfait s future medical expenses would be $477,330.00. The majority criticizes this figure because the estimate was based on Mr. Parfait s continuing his present medications and doctor visits for his future life expectancy with no reductions over time. The actual amount awarded by the trial court for future medical expenses, however, was only $250,000.00. Yet the majority wishes to further reduce this award, inexplicably, to only $100,000.00. With regard to the majority s reduction of the award for future wage loss, I also disagree. After recovering from his previous injury, Mr. Parfait returned to work several years later with Transocean at a much higher salary and with the potential to significantly increase his pay level. Moreover, the majority acknowledges that a promotion to derrick man was imminent, had Mr. Parfait not

suffered the injuries resulting from his fall on the Rather. 7 It was within the jury s discretion to accept Dr. Rice s estimates for Mr. Parfait s future wage loss and make an award accordingly. Therefore, I would not reduce the jury s award for future wage loss. 8 In conclusion, although we cannot say with certainty which particular act of negligence the jury attributed to Transocean, the record is replete with substantial facts that support a finding of negligence against Transocean. Because the trial court did not erroneously exclude evidence of Mr. Parfait s previous accident and claims, the majority s de novo review was inappropriate in this case, particularly because the de novo review was used as a vehicle to mention Mr. Parfait s previous settlement the basis upon which the majority deems it appropriate to reduce Mr. Parfait s award for future wage loss. Additionally, the majority substitutes its judgment for that of the factfinder by declaring that $300,000.00 is a suitable amount for general damages, thereby reducing the award by more than half (and reducing the future medical expenses award), because Mr. Parfait might recover from his depression, and because he can clothe, feed, and drive himself. In reducing these awards, the majority supersedes the trial court s vast discretion and denies Mr. Parfait the damages that were rightfully awarded to him by the jury. 7 As the majority notes, Mr. Parfait s economist estimated his future work life expectancy of 10.21 years, while the defendants expert estimated it at 9.8 years; it seems clear that Mr. Parfait would have been able to work for at least 10 more years, if not more, but for the injuries he suffered on the Rather. 8 The majority reduced the award for future wage loss because Mr. Parfait recovered a substantial amount for future loss of wages as a result of his accident in 1988. The majority is thus of the opinion that to award the amount suggested by Dr. Rice ($5,000.00 more than was actually awarded by the trial court) would effectively allow Mr. Parfait to recover twice for future lost wages. As previously stated, I do not agree that the trial court erred in excluding evidence of Mr. Parfait s previous accident and injury; therefore, no de novo review is necessary in this case.