# Earl K. Phillips and Carrie Phillips v. The Western Company of North America > Court of Appeals for the Fifth Circuit · March 9, 1992 · 953 F.2d 923 URL: https://www.frixlaw.com/law-library/cases/9482474 ## Case - **Full name:** Earl K. PHILLIPS and Carrie Phillips, Plaintiffs-Appellants, v. the WESTERN COMPANY OF NORTH AMERICA, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** March 9, 1992 - **Citations:** 953 F.2d 923; 1992 WL 17406 - **Precedential status:** Published - **Opinion:** Dissent by Jolly - **Judges:** Wisdom, King, Jolly - **Cited by:** 106 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482474 ## How later opinions describe it (automated extraction) - concluding that, in determining whether funds are collateral, the court should consider factors such as (1) whether the employee contributed to the fund; (2) whether the plan is the result of collective bargaining; (3) whether the benefits cover injuries caused by both work an… - noting that, "where the tortfeasor contributes toward the benefit, ... the justifications for denying a setoff become less compelling,” but nevertheless suggesting that a setoff may not be appropriate where the employer's payments into an insurance fund were not made for the p… - stating “if the substantive law disallows a setoff from the tortfeasor’s damages for the plaintiffs collateral benefits, evidence of collateral benefits simply has no relevance in the lawsuit” - finding that in cases where the tort-feasor contributes toward the benefit, the justifications for denying setoff becomes less compelling - explaining that it would not undertake its multi-part analysis when the entire benefit comes from the federal government ## Opinion text E. GRADY JOLLY, Circuit Judge, dissenting: With all due respect for its able opinion, I do not understand how the majority can read the record in this case to justify a reversal. The bottom line in this case is that there is simply no evidence to support Phillips’s Jones Act claim. Before the issue of collateral source payments even becomes relevant, there must be evidence that will support a finding of Jones Act negligence. The majority states that Phillips’s expert witness, Kenneth Kaigler, “[although his statements on cross-examination may have detracted somewhat from [his] conclusion,” provided at least some evidence of negligence — enough, at least, to meet the “extremely low” Jones Act negligence standard. Kaigler’s statements on cross-examination did more than “detract[ ] from [his] conclusion.” “On cross-examination, Kai-gler testified that the air bladder connection ... is a perfectly acceptable technology.... Kaigler indicated that a Dresser sleeve [the alternative he proposed on direct as minimizing the need for workers to move pipe] may in fact be less safe.” (Emphasis mine). Majority opinion at 926-27. The majority is correct that the standard for an unseaworthiness claim differs from the standard governing negligence in a Jones Act claim. The fact remains, however, that in confirming the directed verdict on the unseaworthiness claim, the court commented that Kaigler’s “opinion ... was insufficient by itself to create a jury question on the safety of the procedure. Moreover, Kaigler did not testify that any of the equipment used ... to perform the flow line connecting operation was unsafe. His testimony could lead a reasonable juror only to the conclusion that there are other and perhaps easier methods of connecting a flow line.” (Emphasis in original). Majority opinion at 928-29. It is, therefore, clear that a jury verdict in Phillips’s favor could have been based only on the conjecture that perhaps some other method may have been easier and about as safe. This would not meet even the slight Jones Act negligence standard. 1 To be sure, it is not clear at all that this question should have even been submitted to the jury. See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (“A mere scintilla of evidence is insufficient to present a question for the jury.”). Under these circumstances, no reasonable jury could have returned a verdict for the plaintiff, irrespective of trial errors. For these reasons, I would affirm the jury verdict in this case. I therefore respectfully dissent. . "Under the Jones Act, the plaintiff may recover if the facts show that negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 5-6. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482474. Public record. Not legal advice.