Petition for Writ of Certiorari — Fournier v. Petroleum Helicopters, Inc.

In the

Supreme Court of the United States

OCTOBER TERM, 1988

DANIEL FOURNIER AND BARBARA FOURNIER,

HIS WIFE

Petitioner,

VERSUS

PETROLEUM HELICOPTERS, INC., ET AL

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RICHARD A. THALHEIM, JR., LTD.

A PROFESSIONAL LAW CORPORATION

BY: RICHARD A. THALHEIM, JR.

KERRY P. CAMARATA

ANTHONY A. DINGLEMAN

Post Office Box 5327

506 Canal Boulevard

Thibodaux, Louisiana 70302

Telephone: (504) 447-5000

Attorneys for Petitioner

A B Letter Service, Inc., 327 Chartres St., New Orieans, La. (504) 581-5555

ry

pi ne in Maal Ne tWhe o

Al SI 3 ROE ARS tase

see SNPS:

sete Poe aad

eee aie

i

QUESTIONS PRESENTED

1. Are a trial court’s findings and conclusions clearly

erroneous and a circuit court panel’s affirmance and denial

of en banc review contrary to established law in failing to

award any damages for personal injuries to a severely

traumatized helicopter passenger who nearly drowned and

suffered uncontradicted, extensive, permanent and total

psychiatric disability which rendered him totally non-

functional (including (1) post traumatic extreme and

chronic depression (dysthymic disorder); (2) post traumatic

intense and chronic anxiety; (3) post traumatic chronic pain

syndrome; (4) post traumatic phobia of flying and of

helicopters and helicopter sound) as well as physical injury

due to the helicopter emergency crashlanding from 800 feet

in the air into the rough waters of the Gulf of Mexico many

miles offshore, where the victim passenger spent nearly

two hours in extremely rough, life threatening seas, strug-

gling to stay afloat and ingesting choking amounts of

seawater and where there is uncontradicted expert medical

testimony of the severe psychiatric disability sustained?

2. Does the United States Court of Appeals for the

Fifth Circuit exceed its rulemaking authority under

Federal Rule of Appellate Procedure Rule 47 and violate

Federal Rules of Appellate Procedure Rule 35 (a) by imposi-

tion of the Fifth Circuit’s Internal Operating Procedure

which sets forth a narrower entitlement to Rehearing En

Banc than is authorized by FRAP 35 (a)(2)?

‘i

TABLE OF CONTENTS

Page

QUESTIONS PRE IN sscscsccesiseccussscssssscrennensonntanannne i

TABLE OF COR aee o incnnstsecestscisetsicssnsnsiittossemeneoenacta ii

LASTING OF PART Gcsvicriecinssisscencisssnsicinsssncahisiionasntieel iii

TABLE OF AUT RIOR Tic. cnsescccicccsssistisccssssiscastoctvese iv

CPT IT IOI TY a aicceicesencadcnsannsiccsninstsdengsantemsmnmeiommescines 1

SUTTR EI oN cicnsvccensssccasnsseccensncomatineiannneniacianmmennanns 1

RULES INVOLVED ...0.cccscccescssnssierncscissasniapnnesninnasiemectentens 2

TAT EEDIEENE ssc ccicssecssecisnascssncsncsssiusshicidibndintlaibanisnniitndliiameess 2

REASONS FOR GRANTING THE PETITION............. 6

A. VIOLATION OF SUPREME COURT STAN-

DARD BY FIFTH CIRCUIT AND TRIAL

COIR asc ccanscscenesnnssseccenssangenanaheniahesenieiaaciaetannaines 6

B. IMPROPER RESTRICTION OF EN BANC

REVIEW IN FIFTH CIRCUIT... cee eeeee 10

CONCLUSION osssiecenessssciaresnsesetsinsistisetinssiheanelisistnaaamecsipaaities 11

CERTIFICATE ..icccecassscnsisisisasacamnesintiosiinsaniinecianannanel 12

APPENDIX A. Opinion of the Court of

ABO. nis ciiensiiacninssnnineniedanatmaaaniiicesion A-l

APPENDIX B__ Opinion of the Court of Appeals

Denying Rehearing and Denying

Rehearing En Ban................::sesee000 A-7

APPENDIX C __ Opinion of District Court................. A-9

APPENDIX D_ Minute Entry, April 30, 1987........ A-20

APPENDIX E- Judgment, May 14, 1987................ A-22

LISTING OF PARTIES

DANIEL FOURNIER AND BARBARA FOURNIER,

HIS WIFE;

PETROLEUM HELICOPTERS, INC.;

SUNSTRAND CORPORATION;

AIRWORK CORPORATION;

GENERAL MOTORS CORPORATION, individually and

d/b/a DETROIT DIESEL ALLISON;

THE TRAVELERS INSURANCE COMPANY

iv

TABLE OF AUTHORITIES

CASES Page

Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 107

B.CE. 1410, LADT+ESID (1GBT)..nncrcccrcrcernccsscrcccnsessccnccccessese 6

Haley v. Pan American World Airways, Inc., 746

F.2d 311, rehearing denied 751 F.2d 1258 (5th Cir.

DIO a vnnscccsarsiisientnninicisntatnnchtshinbeinbdoveisiadtnetniticidisiicnnesasocss 6

Hamilton v. Canal Barge Co., Inc., 395 F.Supp. 978

OID. Bt, WT ieiccntctihincccenssnendnsnntesteanicnitnsattibinesecsressesseed 6

Henry v. Gross, 803 F.2d 757 (2nd Cir. 1986)................++ 6

McAllister v. United States, 348 U.S. 19, 20, 75

S.Ct.

GW, Be, GO TT, SB asi ccescnstncncntecedcccnscnsccensesccscesnccsecs 7

Petition of U.S., 418 F.2d 264 (1st Cir. 1969)................... 6

Sahuc v. U.S. Fidelity & Guaranty Co., 320 F.2d 18

Ry FI Fits ieetitticeiciarncttckctentnkentisiecctentsntontniinesoccesseed 6

Shaw v. U.S., 741 F.2d 1202 (9th Cir. 1984)................045 6

United States v. Oregon State Medical Society, 343

U.S. 326, 329, 72 S.Ct. 690, 698, 96 L.Ed. 978............. 7

United States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746............. 7

STATUTES/RULES

a re Ne Be Coin caneeccrasncinsnvenenenesncascannsnnciessnesenece 1

Federal Rules of Appellate Procedure Rule

BRP Ci icentctecocnssoveccsecesesnsnsdeinsehunnccstnecsnsssimanbinainnseainessoe 2,10,11

Federal Rules of Appellate Procedure Rule

Gc cisincdinnnsenncbtitssiaiaisiitdibanndiidiaiibaniiiapsiniiimatiapananeneveen 10,11

Internal Operating Procedure of Fifth Circuit,

Suggestion for Rehearing En Banc, Extraor-

dinary Nature of Suggestions for Rehearing En

aa i ates sbieeianRbindosentbonie 2

SS’ , .snascniibinentohanssrensaiiannnetens 11

Eighth Circuit Local Rule 16(C)..............::ccsscseseseeeeneeeees 11

Eleventh Circuit Local Rule 35.3.....................cccesseeeeeeeeees 11

nr

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No.

DANIEL FOURNIER AND BARBARA FOURNIER,

HIS WIFE

Petitioner,

VERSUS

PETROLEUM HELICOPTERS, INC., ET AL

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CCURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

Neither the original opinion of the Court of Appeals

(Appendix A) nor the opinion of the Court of Appeals deny-

ing rehearing and denying rehearing en banc (Appendix B),

nor the opinion of the District Court (Appendix C) are

reported.

JURISDICTION

Judgment of the Court of Appeals was entered on

April 18, 1988. A timely petition for rehearing or for rehear-

‘ng en banc was denied on May 18, 1988. The jurisdiction

of this court is invoked under 28 USC Section 1254 (1).

2

RULES INVOLVED

Federal Rules of Appellate Procedure 35 (a) reads as

follows:

“A majority of the circuit judges who are in

regular active service may order that an appeal or

other proceeding be heard or reheard by the court

of appeals in banc. Such a hearing or rehearing is

not favored and ordinarily will not be ordered ex-

cept (1) when consideration by the full court is

necessary to secure or maintain uniformity of its

decisions, or (2) when the proceeding involves a

question of exceptional importance.”

The Fifth Circuit’s Internal Operating Procedure-

Suggestion for Rehearing En Banc reads in pertinent part

as follows:

‘A suggestion for rehearing en banc is an extraor-

dinary procedure which is intended to bring to the

attention of the entire Court a precedent-setting

error of exceptional public importance or an opi-

nion which directly conflicts with prior Supreme

Court of Fifth Circuit precedent. Alleged errors in

the determination of state law, or in the facts of

the case (including sufficiency of the evidence), or

error asserted in the misapplication of correct

precedent to the facts of the case, are matters for

panel rehearing but not for rehearing en banc."

(Emphasis added)

STATEMENT

On October 23, 1981, plaintiff Daniel Fournier was a

passenger in a Petroleum Helicopters, Inc. (PHI) helicopter

which experienced engine failure 800 feet in the air and pro-

ceeded to crashland, making an emergency landing without

3

power into high seas (8-10 foot seas) in the Gulf of Mexico,

many miles offshore from the state of Louisiana. Sitting in

the front passenger seat next to the pilot, Mr. Fournier

heard the engine stop and saw the red light flashing

“engine out’’. Aware of the dire emergency, Mr. Fournier

feared the loss of his life and went into a state of

psychiatric shock as the helicopter descended without

power in the emergency crashlanding.

Within a half-hour of the emergency crashlanding,

both the pilot and Mr. Fournier were seasick. They were

pale and worried. The weather was extremely rough and

life-threatening. Mr. Fournier was extremely nervous,

shaken-up and in shock.

The pilot told Mr. Fournier that the pontoons on the

helicopter were only expected to last an hour to an hour and

one-half in normal weather and that he did not know how

long they could last in rough seas.

After remaining in the helicpoter, being buffeted in

the seas, for several hours, Mr. Fournier had to leave the

helicopter when a rescue vessel finally arrived.

At the moment Mr. Fournier exited the helicopter, a

large wave struck the helicopter on the pilot side to the

front, causing Mr. Fournier to be thrown into the Gulf of

Mexico before he was able to inflate both sides of his life

vest. Only one side of the vest was inflated.

The only partially inflated vest, the extremely rough

high seas, and his heavy, water logged clothing caused Mr.

Fournier severe problems with staying afloat. He constant-

ly went under, swallowing more and more sea water with

every wave.

ieee

4

Mr. Fournier spent almost 30 minutes physically im-

mersed in the water, nearly drowning in the Gulf of Mexico.

With every wave, his body would sink, his head would go

under water and he would struggle back to the surface to

try to breathe, only to be covered by water again, and only

to sink again.

He was drowning and he knew it.

After immense struggle, Mr. Fournier finally grabb-

ed desperately onto the tail fin of the helicopter and was

raised up and down in the rough seas. Coughing and gasp-

ing, he fought to hold on, struggling to inflate his life vest.

He clasped the tail wings with both arms summoning the

little strength he had left, struggling to unchoke himself

from the massive quantity of sea water he had swallowed

and hanging on until he started to regain his senses to the

point where he at least could motion to the rescue vessel to

attempt to throw him a life ring.

After severe difficulty, he finally reached the life ring

and was pulled on board a rescue vessel where the vessel

crew wrapped him in a blanket, nauseated and shaking. His

next memory was opening his eyes, lying on the deck of the

boat in vomit.

There was uncontradicted expert psychiatric

testimony that this severe life-threatening experience pro-

duced a state of severe psychiatric disability. Mr. Fournier

is now completely disabled psychiatrically from engaging

in normal functions of life. In addition to the severe panic

state into which he was placed, Mr. Fournier suffers post

traumatic extreme and chronic depression (dysthymic

disorder), post traumatic intense and chronic anxiety, post

traumatic chronic pain syndrome, and post traumatic

phobia of flying and of helicopters and of helicopter sounds.

en ee ee teen

5

He has also suffered pseudodementia and suicidal

thoughts. His previously happy married life has been ruin-

ed and he spends virtually all of his time withdrawn in his

bedroom. Before this severe psychiatric trauma, Mr. Four-

nier was a very active, responsible man who had worked

continuously for 25 years in the offshore oil field. He had

achieved a highly responsible position as an offshore pro-

duction foreman and was energetic, industrious and pro-

ductive. His life style was completely destroyed by this

debilitating trauma and he has become a virtual recluse.

Mr. Fournier’s suit was filed initially against the

helicopter owner and operator, Petroleum Helicopters, Inc.,

which filed third-party complaints against the manufac-

turer of the helicopter engine which failed (General Motors

Corporation/Detroit Diesel Allison), the manufacturer of

the fuel pump which failed (Sundstrand Corporation), and

the overhaul facility which last overhauled the fuel pump

before its failure (Airwork Corporation).

Because the parties could not agree on an evaluation

of the case (plaintiff's evaluation was at least $1,000,000.00

and defendants never offered more than $500,000.00), and

because the damages trial was anticipated to last only

about one week whereas the liability trial would last ap-

proximately three weeks or more, the case was tried on

damages first, with the expectation that the evaluation on

damages placed by the trial court would assist in settling

the case.

Instead, the trial court awarded no damages at all

and dismissed the plaintiff's case, totally ignoring the

severe psychiatric injury and the uncontradicted and ex-

tensive evidence of that injury.

The Appeals Court panel did not correct this severe

injustice, and the Fifth Circuit has in effect an Internal

6

Operating Procedure which restricts the availability of en

banc review by the Fifth Circuit to a smaller class of cases

than FRAP 35 (a) allows. Rehearing En Banc was denied

under the Fifth Circuit’s restrictive standard.

Accordingly, Writ of Certiorari was necessitated.

The Federal District Court entertained this case on

admiralty jurisdiction.

REASONS FOR GRANTING THE PETITION

A. VIOLATION OF SUPREME COURT

STANDARD BY FIFTH CIRCUIT AND

TRIAL COURT

There is uncontradicted medical evidence of the

severe psychiatric injuries suffered by Mr. Fournier as a

result of the ordeal to which he was subjected. He is entitl-

ed to an award of damages for this mental injury under

long settled law. The decision by the trial court, upheld by

the Fifth Circuit panel, conflicts with the applicable deci-

sions of the circuit courts, including the Fifth Circuit itself,

and of the United States Supreme Court which require an

award of damages when a person suffers severe psychiatric

injury. Sahuc v. U.S. Fidelity & Guaranty Co., 320 F.2d 18

(5th Cir. 1963); Haley v. Pan American World Airways,

Inc., 746 F.2d 311, rehearing denied 751 F.2d 1258 (5th Cir.

1984); Henry v. Gross, 803 F.2d 757 (2nd Cir. 1986); Shaw

v. U.S., 741 F.2d 1202 (9th Cir. 1984); Atchison, Topeka

and Santa Fe Ry. Co. v. Buell, 107 S.Ct. 1410, 1417-1418

(1987), on remand 818 F.2d 868; Hamilton v. Canal Barge

Co., Inc., 395 F.Supp. 978 (E.D. La. 1978). Definite nervous

disorders which can be shown to be the result of immer-

sions in the sea are compensable conditions. Petition of

U.S., 418 F.2d 264 (1st Cir. 1969).

7

The trial court ignored the psychiatric injury and the

Fifth Circuit panel failed to review the entire evidence to

assess whether the trial court’s findings were clearly

erroneous.

The appellate court decision violated the Supreme

Court’s clearly erroneous standard as articulated in

McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8,

99 L.Ed. 20 (1954) which states:

“A finding is clearly erroneus when although

there is evidence to support it, the reviewing

court on the entire evidence is left with a definite

and firm conviction that a mistake has been com-

mitted. United States v. Oregon State Medical

Socity, 343 U.S. 326, 329, 72 S.Ct. 690, 698, 96

L.Ed. 978; United States v. United States Gyp-

sum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92

L.Ed. 746.

This case arises out of serious injuries, particularly

serious psychiatric injuries, sustained by Daniel Fournier

when a helicopter in which he was a passenger emergency

crashlanded from an altitude of 800 feet into eight to ten

foot seas in the Gulf of Mexico, where it remained for a two

hour period. Mr. Fournier remained on board the helicopter

as it rode the rough seas. When a rescue vessel arrived, Mr.

Fournier left the helicopter and was standing on its pon-

toon awaiting a rescue ring from the vessel. Before he could

inflate his life vest, a large wave caused him to be thrown

into the Gulf of Mexico. Uncontradicted evidence shows

that Mr. Fournier nearly drowned while he struggled to

stay afloat in the rough seas for a period of approximately

thirty minutes. This traumatic, life threatening experience

has produced severe psychiatric injury and disability.

8

The Trial Court, considering only physical injury to

neck and back, completely ignored this psychiatric

damage, on which the proof is massive and uncontradicted.

The summary calendar appeals court decision ignores the

fact that the trial court erred in never addressing the

psychiatric trauma. Further, the summary panel opinion

repeats the same error and further completely

misunderstands the psychiatric testimony. The summary

calendar opinion addresses the psychiatric trauma in one

short sentence only. That sentence reads (at page 6 thereof)

as follows:

‘“‘At trial, Dr. Sanders, Fournier’s psychiatrist,

acknowledged that Fournier’s psychic injuries

resulted from the surgical operations and the pain

caused by these proceedings.”’

Dr. Oliver Sanders submitted an affidavit to the

Fifth Circuit specifically indicating the clear and utter er-

ror of the summary calendar panel opinion. Dr. Sanders’s

affidavit reads:

‘‘T have read your opinion which asserts that:

“At trial, Dr. Sanders, Fournier’s psychiatrist,

acknowledged that Fournier’s psychic injuries

resulted from the surgical operations and the pain

caused by these procedures.”’

I have never held this opinion and your attribution of

that opinion to me is an outright error.

Mr. Fournier has serious psychiatric injuries and

disabilities due to the helicopter crashlanding and the

period he spent in the water. These psychiatric injuries

are not dependent on nor are they due to the physical

injuries he sustained, nor to the surgical operations

and pain caused by these procedures.”’

9

The summary calendar decision also ignores Dr.

Crenshaw’s uncontradicted testimony that Mr. Fournier

suffered from anxiety neurosis due to the helicopter

crashlanding.

Like the erroneous trial court decision, the Fifth Cir-

cuit’s opinion ignores Dr. Thomas Haydel’s uncontradicted

findings that Mr. Fournier suffered tachycardia as a result

of the crashlanding episode and ignores that Dr. Crenshaw,

likewise, diagnosed the tachycardia. The Fifth Circuit opi-

nion, likewise, ignores orthopedist Dr. Gary’s uncon-

tradicted findings of myalgia due to the helicopter incident.

The Fifth Circuit opinion is also clearly wrong in not

holding that the Trial Court erred in failing to make an

award to Mr. Fournier for what the Trial Court found to be

“muscular strain’. (The Trial Court specifically states:

‘While Mr. Fournier may have been experiencing some

degree of pain, the evidence established that this was most

likely due to muscular strain.’’)

The Trial Court and Appeals Court decisions totally

ignore the psychic shock and anxiety experienced when the

engine failed at 800 feet up in the air. No award was made

for seasickness or nausea experienced by Mr. Fournier,

which the Trial Court and Appeals Court totally ignored.

The Trial Court and Appeals Court totally ignored the

bruising experienced by Mr. Fournier’s arms, which

resulted from his struggling to hold on to the tail fin of the

helicopter while he remained in the Gulf of Mexico for thir-

ty minutes in the water being battered by the rough seas

and the helicopter.

The Fifth Circuit’s opinion nowhere addresses the

above issues. It also contains numerous factual omissions

which imply that the preparation of the summary calendar

10

opinion did not involve a careful review of the entire trial

record. Curiously, the omissions of fact in the summary

calendar opinion are virtually identical to the omissions of

fact in the briefs filed by Petroleum Helicopters, Inc. and

Sundstrand Corporation. The summary calendar opinion

totally ignores the testimony of three uncontradicted fact

witnesses and several treating physicians, as well as failing

to address the specific testimony of fellow passenger Ker-

man LeBlanc who witnessed Mr. Fournier nearly drown.

Further clear evidence of the Trial Court’s error, and

the summary panel opinion’s lack of attention to the facts,

is the failure of the trial court to award any damages for

property loss, even though it is undisputed that Mr. Four-

nier experienced loss of his personal possessions (travel bag

and various contents) as well as loss of his pair of eye

glasses. This simply exemplifies the lax attitude toward

the evidence in this case by the Trial Court.

Because an en banc correction of this injustice was

denied in the Fifth Circuit, the Supreme Court is entreated

to do justice for Mr. Fournier.

B. IMPROPER RESTRICTION OF EN

BANC REVIEW IN FIFTH CIRCUIT

The United States Court of Appeals for the Fifth Cir-

cuit is not entitled under Federal Rules of Appellate Pro-

cedure (FRAP) 47 to issue a local rule or operating pro-

cedure inconsistent with FRAP 35 (a), which authorizes a

rehearing en banc under circumstances ‘‘when the pro-

ceeding involves a question of exceptional importance’’

under FRAP 35 (a)(2). However, the Fifth Circuit’s Internal

Operating Procedure seeks to prohibit en banc review of

“alleged errors in...the facts of the case (including sufficien-

cy of the evidence), or error asserted in misapplication of

correct precedent to the facts of the case...’’, restricting

11

such applications to panel rehearing. FRAP 35 (a)(2) con-

tains no such restriction. The Sixth Circuit in its IOP 18.6

and Eighth Circuit Rule 16 (c) and Eleventh Circuit Rule

35.3 appear to share the Fifth Circuit’s restrictive ap-

proach to en banc review, which appears inconsistent with

FRAP 35 (a)(2) and violative of FRAP 47.

Under the Fifth Circuit’s procedure, a petitioner is

forced to apply to the United States Supreme Court even

though ‘‘the proceeding involves a question of exceptional

importance’’ under FRAP 35 (a) if the appellate panel fails

to correct an injustice which has occurred within the Fifth

Circuit. Such has occurred in the Fournier case. If instead,

the Fifth Circuit is required to entertain an en banc review

of those injustices authorized by FRAP 35 (a)(2), then the

appellate court’s en banc review can correct the injustice

without the need of burdening the United States Supreme

Court.

CONCLUSION

For all of the foregoing reasons, the Petition for Cer-

tiorari should be granted.

Dated August 12, 1988.

Respectfully submitted:

RICHARD A. THALHEIM, JR., LTD.

A PROFESSIONAL LAW CORPORATION

BY: RICHARD A. THALHEIM, JR.

KERRY P. CAMARATA

ANTHONY A. DINGLEMAN

P. O. Box 5327

506 Canal Boulevard

Thibodaux, Louisiana 70302

Telephone: (504) 447-5000

Attorneys for Petitioner

12

CERTIFICATE OF SERVICE

I do hereby certify that I have on this 12th day of

August, 1988, served a copy of the foregoing pleading on

counsel for all parties to this proceeding, by mailing the

same by United States mail, properly addressed, and first

class postage prepaid.

RICHARD A THALHEIM, JR., LTD.

A PROFESSIONAL LAW CORPORATION

BY: RICHARD A. THALHEIM, JR.

KERRY P. CAMARATA

ANTHONY A. DINGLEMAN

P. O. Box 5327

506 Canal Boulevard

Thibodaux, Louisiana 70302

Telephone: (504) 447-5000

Attorneys for Petitioner

A-1

APPENDIX A

IN THE UN-TED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3376

Summary Calendar

DANIEL FOURNIER AND BARBARA FOURNIER,

his wife and individually,

Plaintiffs-Appellants,

THE TRAVELERS INSURANCE CoO.,

Intervenor-Appellant,

versus

PETROLEUM HELICOPTERS, INC.,

Individually and d/b/a P. H. I.

HELICOPTERS, ET AL.,

Defendant- Appellee.

Appeal from the United States District Court for the

Eastern District of Louisiana

(CA-82-2547-1(4))

( April 18, 1988)

Before REAVLEY, KING, and JOLLY, Circuit Judges.

REAVLEY, Circuit Judge:*

* Local Rule 47.5 provides: ‘‘The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession.’’ Pursuant to that Rule, the court has

determined that this opinion should not be published.

A-2

Daniel and Barbara Fournier brought this admiralty

action against Petroleum Helicopters, Inc. (PHI) seeking

damages allegedly incurred when a PHI helicopter in which

Mr. Fournier was traveling made an emergency landing in

the Gulf of Mexico. Following a bench trial on damages, the

district court held that plaintiffs failed to establish that the

emergency landing was the cause of plaintiff’s injuries and

entered judgment for PHI. We affirm.

I.

On June 17, 1982 plaintiffs filed this suit against

PHI seeking damages for injuries allegedly sustained by

Mr. Fournier on October 23, 1981 during an emergency

helicopter landing in the Gulf of Mexico. PHI, the owner

and operator of the helicopter, instituted third-party claims

against Sundstrand Corporation, the manufacturer of the

fuel pump installed in the helicopter; Airwork Corporation,

the overhauler of the fuel pump; and Allison Gas Turbine

Operations, the manufacturer of the helicopter engine.

Travelers Insurance Company intervened as the workers’

compensation insurer of Mr. Fournier’s employer,

Operator’s, Inc. (Tenneco).

By agreement of the parties, the trial was bifurcated

and tried on the issue of damages first. At the conclusion

of the evidence, the court requested that the parties submit

post-trial briefs on the issue of causation. Finding that

plaintiffs failed to establish that the emergency helicopter

landing caused Mr. Fournier’s injuries, the court entered

judgment in favor of PHI and dismissed the third party

complaints and Traveler’s complaint of intervention, as

well as all cross-claims.

II.

The gravamen of plaintiffs’ argument on appeal is

A-3

that the district court erroneously found that the

helicopter landing and subsequent rescue were not as

traumatic as Fournier’s testimony indicated and that the

incident did not cause Fournier’s back, neck and psychic in-

juries. Plaintiffs also contend that the court was inatten-

tive, partisan and made numerous errors, and that plain-

tiffs are entitled to a trial by jury. A careful review of the

trial record is necessary to resolve these claims.

On October 23, 1981 Fournier and Kerman LeBlanc

boarded a helicopter, piloted by Harold Elis Blinsky, which

was to take them to an offshore drilling platform upon

which Fournier worked. After encountering severe

weather, the helicopter’s engine failed and the pilot made

an emergency landing in the Gulf of Mexico. Although

Fournier characterized the landing as a “‘crash,’’ LeBlanc

and Blinsky testified that there was no traumatic impact

upon landing and that the aircraft was not damaged. It

took two hours for a rescue boat to arrive, during which

time the helicopter floated upon its inflated pontoons.

While neither LeBlanc nor Blinsky described their wait for

the rescue boat as traumatic, Fournier testified that he was

tossed about and hit the other passengers.

The rescue required Fournier, LeBlanc and Blinsky

to enter the water. Fournier testified that he nearly drown-

ed, that he swallowed large amounts of water and choked,

and that he was repeatedly struck in the back by the

helicopter’s pontoons. Despite these events, Fournier told

Blinsky on the rescue boat that he was not injured. After

being transported to Abbeville General Hospital, he also

told Dr. Kennedy, an emergency room physician, that he

sustained no injuries. Dr. Kennedy released Fournier with

a diagnosis of ‘‘no injuries.”’ Neither Blinsky nor LeBlanc

sustained any injuries.

A-4

Fournier returned to work on October 27, 1981 less

than one week after the emergency landing. He continued

working through December 11, 1981, making no com-

plaints of pain to anyone, including his wife. Despite Four-

nier’s testimony that he was experiencing back and neck

pain during this period, his supervisors, Norris Soileau and

Merlin Prosper, testified that Fournier never indicated that

he was unable to perform his work or that he was having

any trouble with his back or neck.

On December 15, 1981 Fourneir sought medical

treatment from Dr. Crenshaw. Despite Fournier's claims to

the contrary, Dr. Crenshaw testified that he did not recall

Fournier complaining of any back, neck or other orthopedic

pain during either his initial visit or his follow-up visit on

December 23, 1981. Instead, Fournier was examined for

chest pains. An electro-cardiogram (EKG) was taken,

which proved normal. On January 6, 1982, more than nine

weeks after the emergency landing, Fournier returned to

Dr. Crenshaw complaining of back pain. After performing

an orthopedic examination, Dr. Crenshaw found Fournier's

back to be normal. On January 11, 1982 Fournier sought

treatment from Dr. Gary, an orthopedic surgeon. Dr. Gary

found Fournier’s back to be normal and diagnosed only

muscle pain. On January 18, Dr. Gary reviewed X-rays

taken by Dr. Crenshaw and found only minimal degenera-

tion compatible with a man of Fournier's age.

Fournier then contacted his attorney, who arranged

for him to see Dr. Watermeier on January 27, 1982. Follow-

ing this evaluation, Dr. Watermeier concluded that Four-

nier had simply aggravated a pre-existing arthritic condi-

tion. On February 1 Dr. Watermeier took a myelogram of

Fournier's back which revealed a ventral indentation (a

bump) on one of his lower vertebra. On February 19, 1982

Dr. Watermeier performed elective surgery on Fournier's

A-5

lower back. The surgery revealed a bulging, not a herniated

or ruptured, disc. Dr. Watermeier testified that he would

expect to find such a bulging disc in 60% to 70% of men in

Fournier’s general age group and occupation.

While Fournier had complained of neck pain during

his first visit to Dr. Watermeier on January 27, 1982, Four-

nier did not again complain of neck pain to Dr. Watermeier

until August 30, 1982. Neither Dr. Watermeier’s first nor

second examination of Fournier’s neck revealed objective

problems. In January 1983, after further complaints by

Fournier, Dr. Watermeier ordered a cervical discogram

which revealed a bulging, not a herniated or ruptured, disc.

Dr. Watermeier testified that approximately 60% to 70%

of the men in plaintiff's age and occupational category have

a bulging disc of this nature. Dr. Watermeier conducted

corrective surgery on Fourneir’s neck. Thereafter, Fournier

underwent six further operations on his back and neck. At

trial, Dr. Sanders, Fournier’s psychiatrist, acknowledged

that Fournier’s psychic injuries resulted from the surgical

operations and the pain caused by these procedures.

Ill.

The district court found that “‘[t]he helicopter lan-

ding, while more than normally experienced, was not a

‘crash,’ nor was the plaintiff subjected to conditions which

could be deemed extraordinary in nature.”’ In addition, the

court found that ‘‘[t}he plaintiff did not exhibit any objec-

tive clinical symptoms indicative of a back or neck injury

in the several months following the incident. While Mr.

Fournier may have been experiencing some degree of pain,

the evidence established that this was most likely due to

muscular strain.”’ From these findings, the court concluded

that Fournier failed to establish causation, stating that

there are several plausible explanations for the

A-6

current debilitated state of the plaintiff... . Had

the plaintiff evidenced back or neck injury symp-

tomatology in the days following the incident, the

Court might have been inclined to find causation.

However, the earliest credible complaint of such

was February 6, 1982, more than two months

after the incident. (emphasis in original)

We review the district court’s findings of fact under

the “‘clearly erroneous” standard. Fed. R. Civ. P. 52(a).

Plaintiffs contend that the court improperly found that the

emergency landing was not a crash and that Fourneir was

not subjected to a particular traumatic experience. The

court’s findings, however, are supported by the testimony

of Blinsky and LeBlanc and by Fournier’s own admission

to Blinsky and Dr. Kennedy that he was not injured. Plain-

tiffs also contend that the court’s finding that Fournier did

not complain to Dr. Crenshaw of back pain until January

6, 1982 was erroneous and that, in fact, Fournier made this

compiaint during the December 23, i981 appointment with

Dr. Crenshaw. This assertion is simply not supported by

the record. We find ample evidence in the record to support

the court’s factual findings and its conclusion that plain-

tiffs failed to establish causation, and therefore hold that

plaintiffs’ challenges to these findings is without merit.

In response to plaintiffs’ contention that the district

court was inattentive and partisan, we find, after reviewing

the trial record, that the court was alert and showed no

favoritism. We find that plaintiffs’ laundry list of alleged

misconduct by the district court is without foundation or

merit. Plaintiffs also contend that they were entitled to a

trial by jury. However, Rule 38(e) of the Federal Rules of

Civil Procedure denies the right to trial by jury under any

claim cognizable only in admiralty. Jurisdiction in this case

is based on the General Maritime Law, and plaintiffs do not

argue that an alternative basis for jurisdiction exists.

Therefore, plaintiffs were not entitled to a jury trial.

The judgment of the district court is AFFIRMED.

A-7

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3376

Summary Calendar

Filed May 1 1988

DANIEL FOURNIER and BARBARA FOURNIER,

his wife and individually,

Plaintiffs-Appellants,

THE TRAVELERS INSURANCE CO.,

Intervenor-Appellant,

versus

PETROLEUM HELICOPTERS, INC.,

Individually and d/b/a P. H. I.

HELICOPTERS, ET AL..,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

(CA-82-2547-1(4))

ON PETITION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

(Opinion APRIL 18, 1988, 5 Cir., 198_, F.2d

( MAY 18, 1988 )

Before REAVLEY, KING, and JOLLY, Circuit Judges.

A-8

PER CURIAM:

(X) The Petition for Rehearing is Denied and no member of

this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc, (Federal Rules of Appellate Procedure and Local Rule

35) the Suggestion for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it,

(Federal Rules of Appellate Procedure and Local Rule 35)

the Suggestion for Rehearing En Banc is also DENIED.

( } A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

CLERKS NOTE:

ENTERED FOR THE COURT: SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

/s/ Thomas M. Reavley MANDATE

United States Circuit Judge

A-9

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Filed APRIL 15, 1987

DANIEL FOURNIER, ET AL. CIVIL ACTION

VERSUS NUMBER: 82-2547

PETROLEUM HELICOPTERS, INC.,

ETC., ET AL. SECTION: “I”

CONSOLIDATED WITH:

PETROLEUM HELICOPTERS, INC. CIVIL ACTION

VERSUS NUMBER: 82-4733

SUNDSTRAND CORPORATION,

ET AL. SECTION: “I”

Richard A. Thalheim, Jr., Esq., P. O. Box 602, Thibodaux,

Louisiana 70302

Kenneth Laborde, Esq., McGlinchey, Stafford, Mintz,

Cellini & Lang, 630 Camp Street, New Orleans,

Louisiana 70130

A. R. Christovich, Jr., Esq. and Kearney, 1900 American

Bank Building, New Orleans, Louisiana 70130

Howard Daigle, Jr., Esq., Phelps, Dunbar, Marks, Claverie

& Sims, 1300 Hibernia Bank Building, New Orleans,

Louisiana 70112

A-10

Andrew L. Plauche, Jr., Esq., 541 Julia Street, New

Orleans, Louisiana 70130

MENTZ, District Judge

MEMORANDUM OPINION

JURISDICTION

Jurisdiction is established under 28 U.S.C. §1332.

BACKGROUND

By agreement, trial was held on the issue of damages

only beginning on January 20, 1987, and after submission,

the Court requested briefing solely on the question of

causation.

Plaintiff was allegedly injured on or about October

23, 1981, when he was a passenger in a helicopter owned

and operated by Petroleum Helicopters, Inc. En route to an

oil rig in the Gulf of Mexico, the helicopter encountered bad

weather and experienced engine trouble. As a result of

engine failure, the pilot put the helicopter into ‘‘auto-

rotation! at a height of about eight hundred feet, landing

on 8-10 foot seas, with 20-30 feet between wave crests. The

35 MPH wind was beneficial to the landing and there was

no damage to the helicopter. The experienced pilot testified

that there was no real impact but he could, of course, feel

the helicopter hit the water. This version of the incident

was confirmed, in pertinent part, by Kerman LeBlanc, also

a passenger in the helicopter. Plaintiff, however,

characterizes the landing as a ‘‘crash’’, and at various

times has elaborated on the degree of the event and the

subsequent conditions.

A-11

It took two hours for a rescue boat to arrive. During

this time, the helicopter ‘‘rolled’’ with the waves, and was

subjected to winds and high seas. The craft was equipped

with inflatable pontoons which kept it afloat, although

there was testimony that the pilot was concerned the pon-

toons would not hold up for an extended period. The pilot

and passengers were required to transfer to the rescue

vessel by means of a guide rope. This necessitated that

they enter the water. Neither the pilot nor the other

passenger were injured in this incident.

Plaintiff was taken to the Abbeville General

Hospital for a check-up following the rescue and the report

states ‘‘no pain and didn’t get hit anywhere, patient denies

injuries,’’ with diagnosis of no injuries by Dr. J. T. Ken-

nedy. (Defendant Ex. 1).

Defendant Exhibit 5 shows that plaintiff went to Dr.

Bryan Hemard on October 26, 1981 for an eye exam and to

obtain new eyeglasses. Dr. Hemard reported that the plain-

tiff was not upset about the accident, even though ‘“‘he said

that he was in the water for 24 hours.” Plaintiff returned

to work until December 11, 1981, and then consulted Dr.

Crenshaw.

The plaintiff had continued to work during

November and December of 1981. Mr. Fournier successful-

ly performed his duties on the rig during this time. Earl

Prosper, Mr. Fournier’s supervisor, testified that the plain-

tiff never complained of any ailments during the seven to

eight weeks after the accident. Further, Mr. Prosper did

not detect any physicial manifestations of an injury.

1 Auto-rotation is the procedure in which a helicopter uses the air cur-

rent caused by the descent to turn the blades, thus allowing the pilot

control of the aircraft.

A-12

Dr. Crenshaw, a family physician, first examined

plaintiff on December 15, 1981 for ‘‘problems in the chest’.

The doctor ordered an electro-cardiogram (EKG) which pro-

ved normal. The doctor testified that the plaintiff

demonstrated an ‘‘anxiety neurosis’’ because he felt his job

was in jeopardy due to the helicopter crash. Dr. Crenshaw

referred plaintiff to an internist for a treadmill test and car-

diac evaluation. On January 5, 1982, after receiving Dr.

Henry's treadmill test results, the plaintiff alleged for the

first time that he had complaints as to his neck and lumbar

region. The diagnosis was lumbar-sacral strain.

Plaintiff then consulted Dr. Haydel on January 11,

1982. After a complete physical exam, Dr. Haydel found no

symptoms of orthopedic injury. The only positive finding

was a fast heart rate and a complaint of chest pain.

However, Dr. Haydel referred plaintiff to Dr. Dexter

Gary, a local orthopedic surgeon, who related that plaintiff

complained about both hips, both shoulders, his neck and

low back. Relative to the neck, there was a complete normal

range of motion, no spasm, and a normal exam as to neck

and shoulders. The back exam showed a full range of mo-

tion, without spasm, and no evidence of radiculopathy. His

reflexes were intact and the straight leg raising test

negative. His clinical evaluation of the low back was nor-

mal. The diagnosis was ‘‘mild myalgia” (muscle pain). The

doctor noted “it was subsequent to these chest pains and

headaches that he began having multiple joint com-

plaints.’’ The doctor did not perceive any significance in

the helicopter crash, as the plaintiff was able to continue

working for two regular hitches after the accident. On

January 18, 1982, plaintiff returned and brought his x-rays

of the cervical spine. Dr. Gary felt that they showed

minimal degenerative changes compatible with Mr. Four-

nier’s age, with a sacralization at S-1 (genetic-no clinical

significance) and a slight narrowing of L-5 disc space.

A-13

These symptoms were deemed compatible with plaintiff's

age and occupation, and had no significance based on a nor-

mal clinical exam. The diagnosis was ‘‘no indication of

significant trauma to neck or back. No return appointment

was given.”

At this point, plaintiff's attorney arranged for him to

see Dr. Watermeier of New Orleans which he did on

January 27, 1982. The diagnosis provided was an ‘‘ag-

gravation of arthritis in spine.”’ A return visit on February

1, 1982, for complaints of problems in the low back area,

resulted in a myelogram which showed no evidence of pro-

blems except for what was noted to be a ventral indenta-

tion of L4-L5 vertebra. While the EMG test was normal,

the doctor did a nerve block which was positive at L4-L5.

In Exhibit Defendant 9, (his deposition), Dr. Watermeier

was asked

‘Did you find any objective evidence of some pro-

blem in the lumbar area?”’

Answer: No objective evidence.

The plaintiff was then admitted to the St. Charles General

Hospital on February 14, 1982, and had surgery February

19, 1982.2 Dr. Watermeier noted, when asked about ‘“‘look-

ing further,” that ‘‘the only way you can look further is

sometimes with an operation to directly look.’’ (Deposition

Page 153).

For reasons never satisfactorily explained to the

Court, Dr. Watermeier deemed this surgery appropriate.

Over the next several years, the plaintiff was subjected to

numerous surgical procedures, to wit:

2 Neither insurance company nor employer was advised of the an-

ticipated surgery, the cost of which was guaranteed by Attorney

Thalheim.

A-14

February 14, 19823 - lumbar laminectomy

January 5, 1983 - cervical anterior fusion

May 6, 1983 - lumbar fusion and laminectomy

October 23, 1984 - Morphine epidural

May 19, 1985 - cervical anterior fusion

November 14, 1985 - Morphine epidural

March 10, 1986 - sympathectomy and epidural

September 29, 1986 - Morphine epidural

Dr. Richard Levy, a well recognized expert in neuro-

surgery, testified at trial and stated that with the date of

the accident being October 23, 1981, and eleven and one-

half weeks having passed before the advent of symptoms,

that the accident was not the cause of plaintiff’s spine pro-

blems. He further noted that his first complaint of neck

pain was on August 30, 1982, some ten months after the

helicopter incident. With a disc injury, the symptoms

would appear within 48-72 hours, and five days would be

the outside limit within the realm of medical probability.

Accordingly, the disc injury must have occurred through

some other incident, such as a simple twist, a heavy cough,

or even picking up a newspaper.

Dr. Levy reviewed the EMG, myelogram, and

rediculorgram (nerve block test) of Dr. Watermeier, and

stated that a lumbar laminectomy was not indicated. Fur-

ther he stated that a bulging disc does not cause compres-

sion on the nerve.

In light of the foregoing, the following are the

Court’s findings of fact and conclusions of law. To the ex- ~

tent that any findings of fact are conclusions of law, they

are adopted as such; to the extent that any conclusions of

law are findings of fact, they are so adopted. For the pur-

poses of this opinion, the only issue to be addressed is the

causation of plaintiff’s injuries.

3 Above dates refer to first day of hospitalization.

A-15

FINDINGS OF FACT

I.

Mr. Fournier is presently experiencing a significant

degree of pain, which amounts to an almost total disability.

Il.

Prior to the helicopter incident on October 23, 1981,

the plaintiff was in average health, experiencing only the

normal degenerative and arthritic conditions in his back

and neck which would be expected for a man of his age and

occupation.

ITI.

The helicopter landing, while more severe than nor-

mally experienced, was not a “‘crash,’’ nor was the plaintiff

subjected to conditions which could be deemed extraor-

dinary in nature. A video-tape of a helicopter landing by

‘“‘auto-rotation’’ demonstrated the manner in which an

‘“‘auto-rotation”’ landing is made.

IV.

The plaintiff did not exhibit any objective clinical

symptoms indicative of a back or neck injury in the several

months following the incident. While Mr. Fournier may

have been experiencing some degree of pain, the evidence

established that this was most likely due to muscular

strain.

V.

None of the several local doctors examining Mr.

Fournier between the time of the incident and the time of

A-16

the first surgery detected any objective manifestations

which indicate that the plaintiff's back or neck had been in-

jured. These doctors were selected by plaintiff. The only

doctor to note any condition out of the ordinary was Dr.

Watermeier, who performed the surgery after being

selected by plaintiff's attorney. The first examination by

Dr. Watermeir found nothing significant, and the second

examination revealed, at best, only suspect symptoms.

VI.

Since the time of that initial surgery, the plaintiff's

physical and mental condition have seriously deteriorated.

None of the surgical procedures appear to have aided Mr.

Fournier; on the contrary, he is worse now than before the

series of operations. Psychiatric care by Dr. Oliver Sanders

has not returned the plaintiff to his pre-surgical mental

condition.

CONCLUSIONS OF LAW

I.

To prevail in this matter, the plaintiff must

establish, by a preponderance of the evidence, that the

defendants’ negligence* was the legal cause of his injuries.

II.

In a maritime tort case, the Court relies on general

principles of negligence law. Daigle v. Point Landing, Inc.,

616 F.2d 825 (5th Cir. 1980).

III.

According to W. Page Keeton, Prosser and Keeton

4 Since this matter was tried solely on the issue of damages, the Court

pretermits a finding of negligence, and assumes for the sake of discus-

sion that the defendants were negligent.

A-17

on Torts, 263, 269 (5th Ed. 1984),

An essential element of the plaintiff's cause of ac-

tion for negligence, or for that matter for any

other tort, is that there be some reasonable con-

nection between the act or omission of the defen-

dant and the damage which the plaintiff has suf-

fered. This connection usually is dealt with by the

courts in terms of what is called ‘‘proximate

cause”’ or “‘legal cause.”’

On the issue of the fact of causation, as on other

issues essential to the cause of action for

negligence, the plaintiff, in general, has the

burden of proof. The plaintiff must introduce

evidence which affords a reasonable basis for the

conclusion that it is more likely than not that the

conduct of the defendant was a cause in fact of

the result. A mere possibility of such causation is

not enough; and when the matter remains one of

pure speculation or conjecture, or the pro-

ababilities are at best evenly balanced, it becomes

the duty of the Court to direct a verdict for the

defendant. (footnote omitted).

This standard mirrors the typical jury charge in a case such

as this. Were this a jury case, the Court would have in-

structed the jury in a manner similar to the following:

You are not to award damages for any injury or

condition from which the plaintiff may have suf-

fered, or may now be suffering, unless it has been

established by a preponderance of the evidence in

the case that such injury or condition was prox-

imately caused by the accident in question. An in-

jury or damage is proximately caused by an act,

or failure to act, whenever it appears from the

evidence in the case, that the act or omission

played a substantial part in bringing about or

A-18

actually causing the injury or damage; and that

the injury or damage was either a direct result or

a reasonably probable consequence of the act or

omission.

Indeed, not only is this standard applicable in a general

maritime law case, but would be appropriate in a state law

claim for negligence. See, e.g., Dixie Drive It Yourself

System v. American Beverage Co., 137 So.2d 298 (La.

1962).

IV.

Thus, the plaintiff bears the burden of proving that

the landing of the helicopter on turbulent seas and the

resulting period wherein the plaintiff was “riding the

waves” in the helicopter while waiting for rescue, and the

eventual transfer to the rescue vessel, caused the injuries

of which he now complains. This he has not done.

¥.

A review of the facts herein indicate that there are

several plausible explanations for the current debilitated

state of the plaintiff. While the Court will not engage in

speculation as to exactly which explanation it feels is the

most plausible, the Court does not view the helicopter inci-

dent as having been such. The plaintiff has failed to

establish the crucial link between his back and neck pro-

blems and the October 23, 1981 emergency landing.

Had the plaintiff evidenced back or neck injury

symptomatology in the days following the incident, the

Court might have been inclined to find causation. However,

the earliest credible complaint of such was January 6, 1982,

more than two months after the incident. Further, the

record does not reflect at any time that there were reliable

A-19

medical indications that the plaintiff had been injured on

October 23, 1981.

VI.

In sum, the record reflects that the plaintiff has failed

to carry his burden that his injuries are the result of the

helicopter emergency landing. Since the plaintiff has not

established the vital link between negligence and damages,

whether the defendants, or which among them, were

negligent, or the quantum of the plaintiff's damages is ir-

relevant. Accordingly, judgment will be entered in favor of

the defendants, dismissing the claims of the plaintiff with

prejudice.

New Orleans, Louisiana, this 8th day of April, 1987.

/s/ Henry S. Mentz, Jr.

UNITED STATES DISTRICT JUDGE

A-20

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MINUTE ENTRY

APRIL 30, 1987

MENTZ, J.

Filed MAY 14, 1987

DANIEL FOURNIER, ET AL. CIVIL ACTION

VERSUS NUMBER: 82-2547

PETROLEUM HELICOPTERS, INC.,

ETC., ET AL. SECTION: “I”

CONSOLIDATED WITH:

PETROLEUM HELICOPTERS, INC. CIVIL ACTION

VERSUS NUMBER: 82-4733

SUNDSTRAND CORPORATION,

ET AL. SECTION: “I”

The Court’s Memorandum Opinion in this matter,

dated April 8, 1987 is hereby AMENDED to correct cer-

tain typographical errors, to wit:

(1) jurisdiction is established pursuant to 28

U.S.C. §1333, not §1332.

(2) on page 6, ‘‘rediculorgram’’ should be cor-

rected to read “‘radiculogram”’.

A-21

IT IS ORDERED that the Clerk of Court shall for-

thwith enter judgment in Civil Action No. 82-2547 in favor

of the defendants, dismissing with prejudice the claims of

the plaintiff as well as all cross claims.

IT IS FURTHER ORDERED that a status con-

ference will be convened on TUESDAY, MAY 12, 1987 at

1:30 p.m. to discuss the course of Civil Action No. 82-4733,

and to select a trial date.

Clerk to serve all counsel

DATE OF ENTRY MAY 6 1987

A-22

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Filed MAY 14, 1987

DANIEL FOURNIER, ET AL. CIVIL ACTION

VERSUS NUMBER: 82-2547

PETROLEUM HELICOPTERS, INC.,

ETC., ET AL. SECTION: “T”’

CONSOLIDATED WITH:

PETROLEUM HELICOPTERS, INC. CIVIL ACTION

VERSUS NUMBER: 82-4733

SUNDSTRAND CORPORATION,

ET AL. SECTION: “IT”

JUDGMENT

Considering the Court’s Memorandum Opinion

entered April 15, 1987 and the Minute Entry entered April

30, 1987, accordingly:

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment and dba P.H.I. Helicopters, and

against plaintiffs Daniel Fournier and Barbara Fournier,

dismissing said plaintiff's complaint with prejudice and

costs.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the third party complaints of defendant,

Petroleum Helicopters, against Sundstrand Corporation,

DATE OF ENTRY MAY 14 1987

A-23

Airwork Corporation and Allison Gas Turbine Operations,

a Division of General Motors Corporation, are dismissed

with prejudice.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the complaint of intervention of The

Travelers Insurance Company is hereby dismissed with

prejudice.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the third party complaint of Sundstrand

Corporation against Pesco, A Division of Borg Warner

Corp. and Borg Warner Corporation is hereby dismissed

with prejudice.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that any and all cross claims filed in this civil

action are hereby dismissed with prejudice.

New Orleans, Louisiana, this 14 day of May, 1987.

/s/ Henry A. Mentz, Jr.

UNITED STATES DISTRICT JUDGE