Petition for Writ of Certiorari — American Steamship Co. v. Musleh

(iD | Supreme Court, U.S,

89-371 i =

AUG 28 1889

, JR.

ead JOSEPH a

—— ey

In Che

Suprene Court of the United States

omnnenifiaabiane

October Cerm, 1989

rr

AMERICAN STEAMSHIP COMPANY,

Petitioner.

vs

ALI MUSLEH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

— AND APPENDICES — ;

FOSTER, MEADOwS & BALLARD, P.C.

By: PAUL D. GALEA (P29250)

Counsel of Record

3200 Penobscot Building

Detroit, Michigan 48226

(313) 961-3234

Attorneys for Petitioner —

™ AMERICAN STEAMSHIP COMPANY

Interstate Brief & Record Company, a division of North American Graphics, Inc.

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

i

QUESTION PRESENTED FOR REVIEW

MAY A JURY AWARD STAND WHICH DOES NOT CONFORM

TO THE ADMITTED PROOFS AND WHICH IS BASED ON

SPECULATION, PREJUDICE AND SYMPATHY?

ii

PARTIES TO THE PROCEEDINGS BELOW

Petitioner is American Steamship Company, a New

York corporation. Petitioner is a wholiy-owned sub-

sidiary of GATX Corporation, a New York Corporation.

Respondent is Ali Musieh.

ill

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ........ i

PARTIES TO THE PROCEEDINGS BELOW ..... ii

pee Fg gy |) rr iv

OPINIONS AND ORDERS BELOW ............ l

ES l

9 Se 2

Sarunmeeeen Ge seam CASE ..... 1. sees 2

FEDERAL JURISDICTION IN

UNITED STATES DISTRICT COURT ........ 4

REASONS FOR ALLOWANCE OF THE WRIT .... 4

A. Nature And Extent Of Injury ............ 5

B. Diminution Of Earning Capacity ......... 7

ee vg cou 6s $KEE 8s a5 64000 50% 16

APPENDICES:

Appendix A — Unpublished OPINION of the United

States Court of Appeals for the

Sixth Circuit (June 23, 1989) .... A-l

Appendix B — ORDER DENYING MOTION

FOR JUDGMENT N.OV.

2 AE A arr B-1

Appendix C — JUDGMENT of District Court

oD ty C-1

Appendix D — MICHIGAN TRIAL REPORTER

ee D-1

Appendix E — RELEVANT STATUTORY

eee E-]

iv

TABLE OF AUTHORITIES

PAGE

CASES:

Aldridge v. Baltimore & Ohio R.R. Co., 789 F2d

ee I I eo ns pa nae whacked 4b 4 7

Betancourt v. J.C. Penney Co., 554 E2d 1206 (Ist

Rg, RT erent er re Oe Aen enema 5

Curry v. Fluor Drilling Services, Inc., 715 F.2d

Spe Se BEE 0 kn a cbs dae he NG Rg ees 14

Curtis Publishing Co. v. Butts, 351 E2d 702 (5th

Cir. 1965), affd., 388 U.S. 130 (1967) ........ 4

Dullard v. Berkeley Assoc. Co., 606 F.2d 890 (2nd

ee Peer eee eee Ce ee er eee Pee 16

Filkins v. McAllister Brothers, Inc., 695 ESupp.

ry eek a a away 4 4's 1]

Gaston v. Aquaslide “N” Dive Corp., 487 ESupp.

OP I OD ok iva cea aschuwavneees 15

Gill v. Rollin Protective Services Co., 773 E2d

592 (4th Cir. 1985), mod., 788 F2d 1042

PCG PLisee ck tcp hha eee ek nek on 6 4

Hyde v. Chevron U.S.A., Inc., 697 FE2d 614 (5th

NI ras i ee 14

In Re Air Crash Disaster at New Orleans, Louis-

iana, 795 F2d 1230 (5th Cir. 1986) ......... )

Johnson v. Parrish, 827 F.2d 988 (4th Cir. 1987) 123

Jones & Laughlin Steel Corp. v. Pfiefer, 462 U.S.

Ae Fe ee eee 7, 10

Kokesh v. American Steamship Co., 747 F.2d

1092 (6th Cir. 1984)... .. big We eres get 16

PAGE

Madore v. Ingram Tank Ship, Inc., 732 F2d 475

SM NEE chs winin b6'9:5 00's es Oe 7

Minneapolis St. P. & S. Ste. M. Ry. v. Moquin, 283

CR Sa SR GG. Se Ce. ok eee SS 4

Monessen Southwestern Ry. Co. v. Morgan, —

i) ep Gl eres ee 14

Oliveri v. Delta Steamship Lines, Inc., 849 F2d

POS Ts Ge es es 08 ks 6 8 Secs 10

Petition of United States Steel Corp., 436 F.2d

1256 (6th Cir. 1970), cert. denied, 402 U.S. 987

EPUEE KS55 co nark-au Ge Race oem Core rete 9

Pizani v. M/V COTTON BLOSSOM, 669 FE2d 1084

Sees Ge WE fe oo eo eee bheseecees 4

Schottka v. American Export Isbrandsten Lines,

Inc., 311 ESupp. 77 (S.D.N-Y. 1969} .......... 15

Swentek v. USAIR, Inc., 830 F2d 552 (4th Cir.

_____, SACRE aa RCP ar neg eSB SS Dy Nira 13

Taliferro v. Augie, 757 F.2d 157 (7th Cir. 1985) 4

Thompson v. National R.R. Passenger Corp., 621

F2d 814 (6th Cir. 1980), cert. denied, 449 U.S.

Ie er re ee ee - §, 12

Uris v. Gurney’s Inn Corp., 405 ESupp. 744

8 8 oS Brrr rr rer ere oe 14, 15

Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018

SE nbs ska hk FER SA SEE RAO 13

Wyborski v. Bristo! City Line of Steamship Ltd.,

191 ESupp. 884 (D. Md. 1981) .............. 14

STATUTES:

i ae a | ee ae 2

vi

PAGE

Fe Breer his aa ok 2,4

aie eo 4 nes CCAS KbA Cea E SORA ll

MISCELLANEOUS:

6A Moore’s Federal Practice, § 59.0593 ........ 15

Michigan Trial Reporter, February, 1988 ....... 14

Statistical Abstract

of the United States for 1988 ............. 8, ll

ee

Iu The

Suprene Court of the United States

comment pages

@Mctober Term, 1989

Ya

AMERICAN STEAMSHIP COMPANY,

Petitioner,

vs

ALI MUSLEH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, American Steamship Company, respect-

fully requests that a Writ of Certiorari issue to review

the decision of the United States Court of Appeals for

the Sixth Circuit in its case.

OPINIONS AND ORDERS BELOW

The unpublished opinion of the United States Court

of Appeals for the Sixth Circuit (decided June 23, 1989),

affirming the judgment entered in the District Court, is

attached as Appendix A. The order denying the motion

for judgment notwithstanding the verdict (February 2,

1988) is attached as Appendix B. The judgment of the

District Court (October 5, 1987) is attached as Appen-

dix C.

JURISDICTION

The decision of the United States Court of Appeals

for the Sixth Circuit was entered on June 23, 1989. This

2

petition for certiorari is within ninety (90) days of that

day. The jurisdiction of the Court is invoked under 28

USC. § 1254(1).

STATUTE INVOLVED

This case involves the following statute which is set

out verbatim in Appendix E. 46 USC. § 688.

,

STATEMENT OF THE CASE

(References in parentheses are to district court

docket entries, trial transcripts and trial exhibits)

On October 21, 1985, Respondent, Ali Musleh, was

serving as the second cook aboard the M/V ADAM E.

CORNELIUS, a vessel owned and operated by Petitioner,

American Steamship Company. Respondent first boarded

the ADAM E. CORNELIUS on October 17 and continued

working in this capacity to October 25, 1985 (Musleh

Vol. I], TR 12: Plaintiff's Ex. 3). Since Respondent did not

have enough seniority to hold a permanent position with

Petitioner, Respondent was forced to leave the vessel] on

October 25, when he was “bumped” by an individual

with more seniority (Defendant's Ex.’s 3 and 15: Musleh

Vol. II, TR 58; Gasco Vel. III, TR 20, 31; Anderson

Vol. IV, TR 30, 31).

At the time Respondent boarded the vessel, it was

berthed in Toledo, Ohio, getting ready to start sailing.

Part of the responsibility of the crew in “fit out”

involves the taking on of “stores” which included food

items (Gasco Vol. II!, TR 30, 31: McCabe Vol. III,

TR 72, 73).

3

Goods are brought onto the vessel from the dock via a

basket and crane. Once on the vessel, they are taken to

various parts of the vessel for storage. Food items are

taken to just outside the galley by members of the deck

department. It is then the responsibility of the galley

personnel, of which Respondent was a member, to place

the food items in their proper place (Musleh Vol. II, TR

52, 65; Gasco Vol. III, TR37; McCabe Vol. IIl, TR 74,

106). Among the items being brought onto the vessel,

were gallons of milk which were kept in plastic milk

crates (942 gallons in a crate: the plastic crate being

13” x 13” (Gasco Vol. III, TR 33: Defendant's Ex. 1)).

As tood goods were being transferred unto the ship,

they were stacked outside the galley door. In an attempt

to clear the walkway, Peter McCabe, a deckhand on the

vessel, began moving the itenis {McCabe Vol. Il, TR 71,

76). Brendan Murphy, a porter assigned to the galley of

the vessel, asked Mr. McCabe to slide the milk crates to

him (a distance of approximately 7-12 feet). Mr. Murphy

was, at that time, working with Mr. Musleh in storing

the milk in the refrigerator {Murphy Dp. 4, 7-9). It was

the third crate so slid which struck the Respondent

(McCabe Vol. III, TR 77).

Following the incident, Respondent sought medical

care at St. Vincent's Hospital. He was returned to the

vessel fit for duty (Plaintiff's Ex. 9) and continued

working until October 25, 1985, when the vessel arrived

in Chicago, Illinois. There Respondent was relieved of

his job by an individual with more seniority (Gasco

Vol. II], TR 40, 41).

4

FEDERAL JURISDICTION

IN UNITED STATES DISTRICT COURT

Federal jurisdiction in the court of first instance was

invoked by Respondent under 46 U.S.C. § 688 (Jones Act}

and the General Admiralty and Maritime Law.

REASONS FOR ALLOWANCE OF WRIT

Damages are not to be presumed nor may they be

based on speculation. Respondent in his case had the

burden of proving not only the liability of the Petitioner,

but also the facts which support his claim for damages.

See Pizani v. M/V COTTON BLOSSOM, 669 F.2d 1084,

1088 (5th Cir. 1982); Taliferro v. Augie, 757 F.2d 157, 162

(7th Cir. 1985).

While it is for the jury to determine damages in a civil

suit, it is for the court to insure that the verdict com-

ports with the law. Curtis Publishing Co. v. Butts, 351

F.2d 702, 718 (5th Cir. 1965), aff’d., 388 U.S. 130 (1967).

Thus, the power of the jury to fix damages is not unlim-

ited. Damages must be reasonable: they may not be

based on speculation, prejudice or passion. Minneapolis

St. P & S. Ste. M. Ry. v. Moquin, 283 U.S. 520, 521, 51

S.Ct. 501, 50 (1931).

Evea though a verdict may be supported by substantial

evidence, the verdict must be set aside if it is against the

clear weight of the evidence or will result in a miscar-

riage of justice. Gill v. Rollins Protective Services Co.,

773 F.2d 592, 595 (4th Cir. 1985), mod., 788 F.2d 1042

(1986).

5

There must thus be some relationship between the

award and the claim made. Betancourt v. ].C. Penney

Co., 554 F.2d 1206 (ist Cir. 1977). In order to determine

the propriety of the verdict, the court should look at the

nature and extent of the injuries, expenses incurred, suf-

fering, diminution of earning capacity, permanency of

the injury and awards in similar cases. Thompson v.

National R.R. Passenger Corp., 621 F.2d 814 (6th Cir.

1980), cert. denied, 449 U.S. 1035 (1980). We will discuss

these items seratim.

A. Nature And Extent Of Injury

Shortly after the accident, the Respondent sought med-

ical care at St. Vincent’s Hospital in Toledo, Ohio, where

he had “mild” complaints of pain in the lower leg (Plain-

tiff’s Ex. 9). Respondent was found fit to return to work

and continued working on the vessel until October 25,

1985 (Plaintiff’s Ex. 15).

After the vessel left the docks in Toledo, Ohio (where

the injury occurred). It made two stops en route to

Chicago, Illinois. At no time did Respondent make any

complaints to ship's officers about his injuries, request

to leave the vessel or seek any further medicai attention

(Gasco Vol. III, TR 40; Anderson Vol. IV, TR 5, 26).

At the time of triat, medical testimony was presented

from four physicians: Daniel Schechter, M.D.;

Emmanuel Obianwu, M.D.; Adnan Matta, M.D.; and

Steven Newman, M.D.

During Dr. Obianwu’s treatment of the Respondent a

number of tests were performed. These included straight

leg raising tests which were equivocal (id., 9, 17); x-rays

and an EMG which were within normal limits {id., 11); a

range of motion study of the back which noted some

6

limitation (id., 9); Mr. Musleh’s reflexes were normal and

there was no sign of atrophy (id., 36). There was, how-

ever, signs of muscle spasm and tenderness ({id., 10, 11).

Dr. Matta saw the Respondent 57 times beginning on

October 25, 1985 (Matta Dp. 38). Dr. Matta testified that

he examined Mr. Musleh approximately every second or

third visit (id., 35). Dr. Matta noted the following find-

ings as a result of his examinations: tenderness on

October 25, 1985 and April 14, 1986; stiffness in back on

December 16, 1985, January 2, 1986; decrease in sensa-

tion on December 30, 1985; limping on January 28, 1986

and in May, i987; and spasm March 5, 1986 (Matta Dp.

39-42). Only Dr. Matta described these “findings” as

objective. Other physicians testified that complaints of

tenderness were subjective.

Dr. Newman saw Mr. Musleh on January 27, 1986 and

May 5, 1987, at the request of Respondent’s counsel

(Newman Dp. 10). Dr. Newman noted that his diagnoses

was a sprain and nerve root irritation (id., 23, 34).'

Dr. Schechter saw Respondent on June 18, 1986 and

quite simply found nothing wrong with him.

Clearly this case dealt with a soft tissue back injury.

There was no claim or assertion that Respondent was

impaired from all gainful employment.

Respondent's main disability, if any, was pain. The

jury obviously gave little weight to his claim of pain,

awarding Respondent $8,000.00 for pain and suffering.

' It is interesting to note that despite Respondent's continuous

complaints of pain on almost any movement, he had no complaints

of pain in his back when he went to the Dearborn Medical Center in

February 1986 to obtain treatment on his right foot (Defendant’s

Ex. 6: Musleh Vol. II, TR 86-87).

7

B. Diminution Of Earning Capacity

In order to establish his econornic claim, Respondent

first was required to establish what his stream of income

would have been but for the injury. Thé relevant “stream

of income” would be Respondent's after-tax wages. Jones

& Laughlin Steel Corp. v. Pfiefer, 462 U.S. 523, 536; 103

S.Ct. 2541, 2550 (1983). Thus, in determining “net

income”, amounts paid by the Respondent in federal and

state taxes as well as payments to social security must

be deducted from his gross pay. Madore v. Ingram Tank

Ships, Inc., 732 F.2d 475, 479 (5th Cir. 1984).

Once having determined the “stream of income” the

same must be discounted to present value. Pfiefer, 462

U.S. at 537; 103 S.Ct. at 2550.

Without evidence of inflation or how to adjust for

present value, a jury instructed to make such calcula-

tion, as this jury was, might well lead it to an award

based on sheer speculation. Aldridge v. Baltimore and

Ohio R.R. Co., 789 F.2d 1061 (4th Cir. 1986).

At the time of the accident, Respondent was 53 years

old, having worked with the Petitioner since 1968

(Musleh Vol. I, TR 53: Plaintiff's Ex. 5). Respondent’s

employment record established (a fact Respondent

admitted) that he periodically quit his employment to

return to Yemen where his wife and children resided

(Musleh Vol. II, TR 43). A review of Exhibit 5 notes

Respondent took a 16-month leave of absence in '76/’78

and a 22-month absence in ’82/’84.

Respondent's Exhibit 3 established the following gross

earnings for the period between 1980 and 1985:

1980 - $15,102

1981 - $24,087

1982 - $17,974

1983 - -0-

1984 - $ 5,827

1985 - $10,892

Respondent's 1985 Income Tax Return set forth earn-

ings from three employers plus vacation benefits

totalling $32,281.00. The return also notes federal

income tax of $3,589.00 and social security payment of

$2,290.45. There was no indication of the amount of

state income tax paid.

There was no testimony that Respondent was disabled

from all means of employment. Quite the contrary, Dr.

Obianwu specifically refuted this contention (Obianwu

Dp. 44). In fact, apart from Dr. Newman, there was little

cestimony regarding Mr. Musleh’s ability to work (Dr.

Schechter categorically stated that in his opinion

Respondent was “feigning his injury” (Schechter

Dp. 15)). Further, no evidence was introduced regarding

any past or future medical bills.

No expert testimony was introduced regarding the

Respondent's lost wages (past or future) or any adjust-

ment the jury could or should make for inflation or

reduction to present value. Respondent's only evidence

regarding his economic loss was the introduction of his

1985 income tax return and Respondent's payroll record

from this Petitioner.

During his closing argument, however, counsel for

Respondent referred to the “normal” retirement age as

being “65” (id. at TR 27). No testimony was elicited on

this point. Quite the contrary, while life expectancy has

gone up, the Statistical Abstract of the United States for

1988 shows that the number of people between the age

of 55 to 65 in the work force has steadily decreased and

will continue to do so to 1995 (R. 33, Ex. A).

9

Respondent referred to the fact that “wages are going

up” (id. at TR 28). No testimony was elicited on this

subject. The statistical abstract (R. 44, Ex. A) and the

union contract applicable to the Respondent (which

was not introduced) are again to the contrary of this

position.”

Counsel also referred to an inflation factor of five (5%)

percent (id. at TR 27) and between seven (7%) percent

and fifteen (15%) percent (id. at TR 28). Again, nowhere

in the record is there any support for any of these figures.

They were simply pulled out of the air and presented to

the jury as a viable means for determining future

damages. ,

Based on minimal evidence regarding economic dam-

ages and counsel's improper argument, the jury arrived

at the conclusion that Respondent had suffered a

In Petition of United States Steel Corp., 436 F.2d 1256 (6th Cir.

1970), cert. denied, 402 U.S. 987 (1971), the Court of Appeals for the

Sixth Circuit held that it was error in determining the loss of the

plaintiff's earning capacity to have added to the established earnings

of the plaintiff an annual increase of four (4%) percent representing

an increase in productivity and inflation where it was shown that the

plaintiff's employment was subject to a collective bargaining agree-

ment. The Court went on to hold that generalized projections of an

economist must yield to the uncontradicted facts of a particular case.

In In Re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d

1230 (5th Cir. 1986), plaintiff’ts economist was prepared to testify

that plaintiff's salary would increase by eight (8%) percent in real

terms and that plaintiff would pay only five (5%! percent of his

income in taxes over the next 40 years. The Court found both

assumptions to be erroneous in both fact and law and concluded “the

assumptions of plaintiffs’ economist is so abusive of the known facts,

and so removed from any area of demonstrated expertise, as to pro-

vide no reasonable basis for calculating how much of [plaintiff’s}

income would have found its way into assets or savings to be inher-

ited by his children. An award for damages ‘cannot stand when the

only evidence to support it is speculative or purely conjectural.’” Jd.

at 1235.

10

$192,000.00 economic loss. Such an award is clearly

excessive and warrants the granting of a new trial or a

remittur.

In determining the “stream of income” in the instant

matter, the only real evidence produced were the

Respondent's 1985 tax return and his wage record from

the Petitioner. Taking these two exhibits, Respondent's

average gross earnings were approximately $15,060.00.

Extending this income from 1986 to 1998 when

Respondent will he 65 years old, the gross lost income is

approximately $180,000.00.

This does not end the process for the Pfiefer Court rec-

ognized that lost wages must be discounted and deal

with net wages.

The Court in Pfiefer recognized that the discount rate

combines earning growth and what one could earn via

the investment of a lump-sum award.

If one were to accept the conservative two (2%) per-

cent real interest rate (i.e., inflation minus reduction to

present value} as adopted by the Second Circuit Court of

Appeals in Oliveri v. Delta Steamship Lines, Inc., 849

F.2d 742 (1988), Respondent's gross earnings reduced to

present value would be approximately $161,462.00. This

again is Respondent's gross earnings. One must assume

that Respondent would be paying state and federal taxes

as well as social security.

If one were to assume that Respondent would pay

three (3%) percent of his gross income in Federal Income

Tax {as shown in his ’85 return) that would reduce his

net loss to $132,500.00. His net loss must be still fur-

ther reduced to reflect the payment of state taxes. As

noted above, in order to correctly determine Respond-

ent’s “stream of income” his gross yearly earnings must

OE Le CTO Ce aa TT

1]

be reduced to reflect payments, not only for federal

income tax, but state tax and social security tax. Thus,

Respondent's gross earnings must be reduced to reflect

the 4.6 percent he would have paid in Michigan income

tax (M.C.L. § 206.51) and the 7.51 percent he would have

paid in social security tax. These deductions would

reduce Respondent’s lost income to approximately

$ 116,912.00.

Again that assumes he would not obtain any gainful

employment until the year 1998. No one testified that

Respondent was unemployable physically. In fact,

Respondent was found fit for duty and returned to his

employment with Petitioner on June 4, 1989 and has

worked two months in Petitioner’s employ earning on

average $120.00 per day.°

In Filkins v. McAllister Brothers, Inc., 695 FESupp. 845

(E.D. Va. 1988), plaintiff, a cook on board the defendant’s

tug, sought recovery for injuries which he alleged

occurred when the tug on which he was-working came

in contact with a barge causing the plaintiff to in-

jure his back. As in the instant matter, plaintiff in

Filkins was able to continue working for some time

following the alleged injury before ever seeking any

medical care.

Also, as in the instant matter, there was a real dispute

regarding the condition of the plaintiff and the nature of

his injury. Filkins’ treating physician testified that he

> Assuming arguendo that Respondent did obtain gainful employ-

ment elsewhere, Respondent should be able to earn as much as he

lost. Pursuant to the Statistical Abstract of the United States for

1988, an individual employed in retail trade (which includes among

other areas, eating and dining establishments, gasoline stations and

grocery stores) would earn on average $14,000.00. See tables 645 and

1307. This, of course, assumes that Respondent will seek empley-

ment in the United States and not return to his native Yemen.

12

had a lumbar nerve irritation and that he would have

pain if he engaged in heavy lifting, bending, or the like.

In concluding that an award of $180,000.00 to the

Respondent was excessive, Judge Kellaman did a thor-

ough analysis of the basis upon which a court may dis-

rupt a jury’s award as being excessive. The court

emphasized several factors for consideration.

[t]he court should consider other awards in othes

[sic] cases, as well as the nature and extent of the

injuries, suffering, expenses, diminution of

earning capacity, age, expectation of life, perma-

nency and so on. See also Thompson v. National

R.R. Passenger Corp., 621 F.2d 814 (6th Cir. 1980),

cert denied, 449 U.S. 1035 (1980).

If the amount of the verdict is entirely out of pro-

portion to verdicts in similar cases for similar

injuries and damages or is so unreasonably high

as to result in a miscarriage of justice, the court

should set it aside.

+ + +

While great power is vested in a jury, the right cf

the jury to fix the amount of damages is not arbi-

trary or unlimited. Even though there is no spe-

- cific rule by which damages in cases like this are

to be found, they may not be determined by spec-

ulation, passion or prejudice ... “no verdict

should be permitted to stand where it is. found to

be in any degree a result of appeals to passion and

prejudice.” (citations omitted) Jd. at 850, 851.

+ + +

In its supervision over the verdicts of the jury, if

the court finds that the amount awarded is so

great as to shock the conscience of the court and

13

to create the impression that the jury has been

motivated by passion or prejudice, or has miscon-

ceived or misconstrued the facts or the law, or if

the award is so out of proportion to the injuries

suffered as to suggest that it is not the product of

a fair and impartial decision, the court should

step in and correct it. (citations omitted)

+ = +

It has been the practice, supported by consider-

able decisions, that the amount to be awarded to

an injured person is vested in the fact finder, usu-

ally the jury. But, “neither the antiquity of a prac-

tice nor the fact of steadfast legislative and

judicial adherence to it through the centuries

insulates it from ... attack [and] [t]he need to be

open to reassessment of ancient practices other

than those explicitly mandated ... .” Williams

v. Illinois, 399 U.S. 235, 239-40 (1970). Nor does it

relieve or justify this court from the performance

of its duty to exercise proper control over verdicts

as “new cases expose old infirmities which

apathy or absence of challenge have permitted

to stand.” Williams, 399 U.S. at 245. Id. at 852,

853.

In setting aside the award, the court, relying on the

case of Johnson v. Parrish, 827 F.2d 988 (4th Cir. 1987)

and Swentek v. USAIR, Inc., 830 F.2d 552 ‘4th Cir. 1987),

concluded that: where there is little evidence of any

sums due for medical expenses, lost wages, or loss of

future employment; where the record is void of any evi-

dence of the Respondent’s hourly or monthly earnings

and the lessening of any earning capacity; and, where

there is no evidence that the Respondent was unemploy-

able, the award of $180,000.00 was clearly excessive and

warranted the granting of a new trial.

14

In its analysis, the Filkins Court recognized that

determining whether a verdict is adequate or excessive is

not “easy”. While each case must be judged on its own

facts, prior awards may be reviewed to help determine

whether an award is excessive, inadequate or within the

range of usual verdicts in similar cases.

Attached as Appendix D are excerpts from the Mich-

igan Trial Reporter for February to October 1988. The

Michigan Trial Reporter is an index of all Michigan cir-

cuit court jury trials in the eight counties surrounding

Detroit, Michigan. Appendix D evidence verdicts in

~ cases involving back injuries. Appendix D demonstrates

that in soft tissue back injury cases, “usual verdicts” are

approximately $25,000.00 *

In Uris v. Gurney’s Inn Corp., 405 F.Supp. 744

(E.D.N.Y. 1975), the court granted the detendant’s motion

for a new trial on the grounds that a jury verdict of

$500,000.00 in favor of the plaintiff was grossly exces-

sive. in Uris, the plaintiff sustained severe and perma-

nent head injuries as a result of being thrown from a

dune buggy manufactured by the defendant.

The plaintiff's damages, as noted via the special ver-

dict entered by the jury, awarded the plaintiff

$200,000.00 for pain and sutfering to the date of trial,

and $300,000.00 for future pain and suffering. In support

of her claim for future pain and suffering, medical testi-

mony was presented establishing that there was perma-

4

For published opinions evidencing awards where plaintiff

claimed back injuries, the Court is directed to: Monessen South-

western Ry. Co. v. Morgan, — U.S. —__, 108 S.Ct. 1837 (1988);

Wyborski v. Bristol City Line of Steamship Ltd., 191 FSupp. 884 (D.

Md. 1981); Hyde v. Chevron U.S.A., Inc., 697 F.2d 614 (5th Cir. 1983);

Curry v. Fluor Drilling Services, Inc., 715 F.2d 893 (5th Cir. 1983). ;

_

15

nent scarring of the plaintiff's brain tissue which could

cause a convulsive disorder at any time.

After having reviewed all of the testimony presented

at the time of trial, the court concluded that the

$300,000.00 awarded for future pain and suffering was

“so grossly large that it would be a denial of justice to

permit it to stand.” Jd. at 746. The Uris court, in

determining how much of the verdict was excessive,

adopted as a guideline the approach set forth in 6A

Moore’s Federal Practice, § 59.6593, which holds the

excess to equal “the excess over the amount the court

believes a properly functioning jury should have found.”

Id. at 747. The court also took into considerattion the

fact that plaintiff's counsel had suggested certain figures

to the jury. Finally, the court compared the verdict

entered in Uris to those entered by other juries in other

cases where similar injuries had been claimed and there-

tore ordered a new trial in the event that the plaintiff did

not agree to a substantial remittur of the damages

awarded.

In Schottka v. American Export Isbrandsten Lines

Inc., 311 ESupp. 77 (S.D.N.Y. 1969), the court also

granted the defendant a new trial on the grounds that the

verdict of $50,000.00 entered in favor of the plaintiff

was “so grossly excessive as to exceed the recovery

which the law will allow.” Jd. at 80. The court thor-

oughly reviewed the medical testimony presented at trial

before reaching the conclusion that the verdict was so

grossly excessive as to be illegal and thus, felt a duty to

set it aside. Jd. See also Gaston v. Aquaslide “N” Dive

Corp., 487 ESupp. 16 (E.D. Tenn. 1980), wherein the

court held that an award of $1,250,000.00 to a quadri-

plegic in a products liability action was excessive and

“beyond the maximum limit of a reasonable range”

16

based on other verdicts arrived at under similar factual

situations. Jd. at 19. In Gaston, the court granted a

remittur, reducing the award accordingly.

In Dullard v. Berkeley Assoc. Co., 606 F.2d 890 (2nd

Cir. 1979), a jury awarded the widow of a construction

worker $630,000.00 for his wrongful death. In ruling that

the damage award was excessive, the court compared the

decedent's income at the time of his death with that of

income that would be generated from the award,” if

allowed to stand.

SUMMARY

Respondent's only real evidence addressing his conse-

quential damages were his 1985 income tax returns and

wage records from the Petitioner. While it is recognized

that the purpose of a trial is not to present a symposium

on economics, the injured seaman must be required to

prove his damages. Yet in the instant matter, once

having presented the above referred to documents, and

relying almost exclusively on the ‘85 return, Respondent

argued (prejudicially it is contended) regarding inflation,

wage increases, work life expectancy without any evi-

dence to support these claims.

If an injured seaman is permitted to establish eco-

nomic damages with so minimal proofs, the burden will

then be placed on the employer to disprove an alleged

° The court determined that the $630,000.00 award invested to

yield a conservative seven percent arnual income would have pro-

vided the next of kin an annual income of $44,100.00 without ever

touching the principal, as contrasted with the $15,704.00 the dece-

dent was actually earning at the time of his death. 606 F.2d at 895. A

contrary ruling is found at Kokesh v. American Steamship Co., 747

F.2d 1092 (6th Cir. 1984).

17

economic loss through the production of economic

experts and documentation. This is contrary to the

entire premise upon which our civil jury system is

based.

Thus, the petition presents several significant issues

among them what proofs are necessary to establish one’s

economic loss, and as the propriety of the award once

having presented the proofs.

It must be remembered that Respondent was injured

while working with two other crewmen in loading the

ship's refrigerator with milk from plastic containers. The

operation, in and of itself, was no more hazardous than

putting away the family groceries. The Respondent and

his tellow workers chose to accomplish this loading by

sliding plastic crates filled with milk across the floor

towards the refrigezator rather than to lift and carry

them in that direction. One of the crates struck the

Respondent in the lower leg in the midst of this opera-

tion, causing the injuries complained of.

From this insignificant act, the jury arrived at the con-

clusion that Respondent was entitled to $192,000.00 in

economic damages. This despite the fact that no one ever

testified that Respondent was disabled from gainful

employment.

With such minimal evidence on the damage issue, the

jury’s award can only be based on confusion, prejudice

against Petitioner or sympathy for Respondent any of

which would warrant the granting to Petitioner of a

new trial.

The decision of the Court of Appeals on this issue, as

well as its rulings on the other issues presented in this

18

petition, if allowed to stand, will have a significant

adverse effect not only upon this Petitioner but poten-

tially upon many other Jones Act employers.

For the reasons presented herein, Petitioner prays that

this Honorable Court grant its petition for certiorari.

Respectfully submitted,

FOSTER, MEADOWS & BALLARD, PC.

By: /s/ PAUL D. GALEA (P29250)

Counsel of Record

3200 Penobscot Building

Detroit, Michigan 48226

(313) 961-3234

Attorneys for Petitioner —

AMERICAN STEAMSHIP COMPANY

Dated: August 23, 1989

A-1

APPENDICES TO PETITION FOR CERTIORARI.

APPENDIX A

OPINION

NOT FOR PUBLICATION

NOT RECOMMENDED FOR FULLTEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations. Please see Rule 24

before citing in a proceeding in a court in the Sixth Circuit. If cited,

a copy must be served on other parties and the Court.

This notice is to be prominently displayed if this decision is reproduced.

2

we

(United States Court of Appeals — Sixth Circuit)

(Filed June 23, 1989)

(ALI MUSLEH, Plaintiff-Appellant (88-1241), Plaintiff-

Appellee (88-1242), vv. AMERICAN STEAMSHIP COMPANY,

Defendant-Appellee (88-1241), Defendant-Appellant (88-

1242) — Nos. 88-1241/42; ON APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF MICHIGAN)

BEFORE: MARTIN and BOGGS, Circuit Judges;

and CONTIE, Senior Circuit Judge.

PER CURIAM.

Ali Musleh (“plaintiff”) appeals the district court’s

jury instruction on comparative negligence in this

Jones Act, 46 U.S.C. Sec. 688, claim. American Steam-

ship Company (“defendant”) cross-appeals the verdict

and requests a new trial. The jury returned a verdict of

two hundred thousand dollars ($200,000) for the plain-

A-2

tiff reduced 50% for his own comparative negligence.

Finding no error in the instructions or other proceedings,

we affirm the judgment in favor of the plaintiff for one

hundred thousand dollars ($100,000).

I

Plaintiff began working as the second cook aboard the

M/V ADAM E. CORNELIUS, a vessel owned and operated

by the defendant, on October 17, 1985. Part of the plain-

tiff’s responsibilities included the “fit out,” which is the

taking on of stores for the journey. This is usually

accomplished by bringing goods onto the vessel with a

basket, and then storing the goods in the appropriate

place on the vessel. Food items are taken to just outside

the galley by members of the deck department. It is then

the responsibility of the galley personnel, including

plaintiff, to place the food items in their proper place.

On October 21, 1985, gallons of milk in plastic milk

crates were brought on board the vessel. These crates

were stacked outside the galley door. In an attempt to

clear the walkway, Peter McCabe, a deckhand on the

vessel, began moving the items. Brendan Murphy, a

porter assigned to the galley, asked McCabe to slide the

milk crates to him. At this time, Murphy was working

with the plaintiff by helping him store the milk in the

refrigerator. Two crates were slid across the floor

without incident. Plaintiff claims that he did not see

either of these crates. Plaintiff also testified that it was

routine procedure to carry the crates, not to slide them

across the floor.

When Murphy slid the third crate, it struck plaintiff in

the leg. Murphy acknowledged that he had not signaled

A-3 ~

the plaintiff in any way that the crates would be slid

across the floor. Following the incident, plaintiff sought

medical care at St. Vincent’s Hospital. At the hospital,

plaintiff was diagnosed with a small hematoma and was

told to use an Ace bandage and ice the area for forty-

eight hours and soak or heat the area four times a day

thereafter. He was returned to the vessel fit for duty and

continued working until October 25, 1985, when the

vessel arrived in Chicago, Illinois, and plaintiff was

relieved of his duties by someone with more seniority.

Since leaving the vessel on October 25, 1985, plaintiff

has sought medical care from several physicians in rela-

tion to his injury.

Plaintiff commenced this action on March 12, 1986,

alleging negligence on the part of American Steamship

Company. American Steamship’s answer pleaded the

affirmative defense of comparative negligence. During

the trial, evidence was given concerning the location of

all involved parties during the incident, the plaintiff's

knowledge of the events surrounding the incident, and

plaintiff's previous earnings history. In 1985, plaintiff's

gross earnings were $33,381. $10,892.96 of this amount °

was made with the defendant. From 1981 until 1984,

plaintiff's annual salary with the defendant ranged

between $6,827.56 and $24,087. The lower earnings gen-

erally correspond to the years in which plaintiff went to

Yemen for extended periods of time.

At the close of the proofs, plaintiff requested that the

district court not give any instruction regarding contrib-

utory or comparative negligence, claiming that there was

no evidence to support this instruction. The district

court denied this motion and instructed the jury on com-

parative negligence. A verdict was returned for the plain-

tiff on October 5, 1987, in the amount of $200,000 with

A-4

a fifty per cent comparative negligence assessment.

Defendant filed a Motion for Judgment NOV, a New

Trial or Remittitur, which was denied on February 2,

1988. This appeal followed.

II

Each party has one main issue on appeal. Plaintiff

objects to the jury instruction regarding comparative

negligence while the defendant primarily contends that

the verdict was clearly excessive and should be set

aside. '

A

Plaintiff contends that the district court should not

have given a jury instruction regarding comparative neg-

ligence or conversely should have set aside the jury’s

reduction based on a finding of comparative negligence

because he claims that the evidence is insufficient to

support a comparative negligence theory as opposed to

an assumption of the risk theory.

A defendant is entitled to a contributory negligence {or

comparative negligence) instruction if there is any evi-

dence to support the theory; however, giving one where

not warranted is reversible error. Birchem v. Burlington

Northern R. Co., 812 F.2d 1047, 1049 (8th Cir. 1987).

Thus, in Jones Act (46 U.S.C., Sec. 688) cases, a “contrib-

utory negligence” instruction is not to be given if the

1

In its brief, American Steamship Company also contends that

the district court improperly allowed evidence of subsequent reme-

dial action, that plaintiff's attorney presented improper closing argu-

ment, that the jury instruction regarding plaintiff's “slight duty of

care” was erroneous, and that the verdict was inconsistent. We find

the objections either not well taken or not so harmful as to require a

new trial.

A-5

facts really suggest an “assumption of the risk.” Hall v.

American S.S. Co., 688 F.2d 1062, 1065 (6th Cir. 1982).

For the purposes of this rule, “assumption of the risk”

means proceeding in an unsafe area of the ship when

there is no other alternative open to the seaman. Id. at

1065-66 (quoting Tolar v. Kinsman Marine Transit Co.,

618 F.2d 1193, 1195 (6th Cir. 1980)). Furthermore, a

seaman is not contributorily negligent simply because

he fails to report a dangerous condition, if doing so

would otherwise cause the seaman difficulty or be una-

vailing. Rivera v. Farrell Lines, Inc., 474 F.2d 255, 258

(2nd Cir. 1973).

In Burden v. Evansville Materials, Inc., 840 F.2d 343

(6th Cir. 1988), this court held that a man who had

injured his back while lifting heavy cables on a ship

could be contributorily negligent because he had real-

istic safe alternatives available and he chose the

alternative which led to his injury. This court noted that

the seaman was in a dangerous position but found that

one of the alternatives (carrying the cables with a

partner) was safer than the alternative chosen by the

seaman of lifting the cables by himself. This court paid

particular attention to the fact that the seaman could

have requested help without any negative reaction from

the management of the ship. This is in direct contrast to

the kitchen worker in Rivera who could not request help

to alleviate his dangerous condition, a slippery floor,

because previous requests by others had been met with

rebukes. See Rivera, 474 F.2d at 258.

In the present case, the district court did not err in

instructing the jury regarding comparative negligence.

Although plaintiff insists that the loading of milk

cartons was a dangerous condition and thus an “assump-

tion of the risk” under Hall, plaintiff has introduced no

A-6

evidence that he could not have warned his superiors or

requested that the parties cease sliding milk cartons

across the floor. Thus the case is similar to Burden in

which this court decided that the situation could consti-

tute cognizable “contributory negligence” because of the

presence of safe alternatives.

Plaintiff counters that he was not even aware that the

milk cartons were being slid across the floor, and there-

fore could not have requested that the parties take other:

actions. It is clear from the verdict that the jury did not

accept this version of the facts. Although in analogous

situations under the FELA (the statute upon which the

Jones Act is based), a defendant cannot prove contribu-

tory negligence by only attacking the credibility of the

plaintiff’s testimony, Birchem, 812 F.2d at 1049-1050

n.4, this has not occured in the present case. McCabe's

testimony concerning the location and actions of the

parties at the time of the accident could certainly be

interpreted by a reasonable person as indicating that the

plaintiff was aware of what was going on and did not

take reasonable or proper precautions for his own safety.

Thus, the jury instruction regarding comparative negli-

gence was warranted.

. B

The defendant contends that this court should order a

new trial arguing that the verdict was excessive. Specifi-

cally, defendant alleges that the verdict was so out of

proportion to the injury as to “shock the conscience.”

A court can overturm a jury verdict if it is so outra-

geous as to shock the conscience and there is no reason-

able basis for its size. Rodgers v. GFisher Body Div.,

G.M.C., 739 F.2d 1102, 1106 (6th Cir. 1984) (citations

omitted). In the present case, the defendant has not met

in

A-7

this high burden. Although defendant continues to char-

acterize plaintiff's injury as a non-disabling “bump on

the leg,” the jury, presented with conflicting medical

testimony, thought otherwise. Furthermore, if one

accepts the version of the facts which support the theory

that the plaintiff was disabled from the accident, then

the figure arrived at by the jury is not excessively large

when plaintiff’s earnings record is combined with the

number of years he had left to work. The fact that this

value was not mitigated by his possible earnings in other

areas is not the responsibility of the plaintiff. The

burden is on the defendant to show that the plaintiff

could have mitigated damages by taking lesser employ-

ment. Jones v. Consolidated Rail Corporation, 800 F.2d

590, 593 (6th Cir. 1986).

This is a classic case of factual disputes which should

have been, and were, submitted to a jury. The jury

returned its verdict, and neither party has advanced a

legal contention sufficient to overturn this verdict.

Therefore, the judgment is AFFIRMED.

ISSUED AS MANDATE: July 17, 1989

COSTS: NONE

(Certification Omitted)

B-1

APPENDIX B

ORDER DENYING MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT, FOR A NEW TRIAL,

OR, IN THE ALTERNATIVE, FOR REMITTUR

(United States District Court —

Eastern District of Michigan — Southern Division)

(Session of February 2, 1988)

(ALI A. MUSLEH, Plaintiff, -vs- AMERICAN STEAMSHIP

COMPANY, Defendant — Case No: 86 CV 70967 DT;

HON: Barbara K. Hackett)

At a session of said Court, held in the U.S. Courthouse,

City of Detroit, County of Wayne, State of Michigan,

on February 2, 1988.

PRESENT: HONORABLE BARBARA K. HACKETT,

U.S. District Court Judge.

This matter having come before the Court on the

Motion of the defendant for a Judgment Notwithstanding

the Verdict, for a INNew Trial or, in the Alternative, for

Remittur, oral arguments having been heard, and the

Court being fully advised in the premises;

IT IS HEREBY ORDERED that defendant's Motion for

Judgment Notwithstanding the Verdict, for a New Trial

or, in the Alter.ative, for Remittur, is denied for the rea-

sons set forth on the record at the time of oral argument

on the Motion, specifically January 20, 1988.

/s/ BARBARA K. HACKETT

U.S. District Court Judge

Approved as to form:

By: /s/ D. Michael O’Bryan (P30545)})

Attomey for Plaintiff

ee

C-]

APPENDIX C

JUDGMENT IN A CIVIL CASE

(United States District Court —

Eastern District of Michigan)

(Filed October 8, 1987)

(ALI MUSLEH, v. AMERICAN STEAMSHIP CO. — CASE

NUMBER: 86-70967)

Jury Verdict. This action va 1¢ before the Court for a

trial by jury. The issues have been tried

and the jury has rendered its verdict.

IT IS ORDERED AND ADJUDGED:

that judgment is entered in favor of plaintiff in the fol-

lowing amounts:

lost wages to the present date: $32,000.00

future lost wages: $ 160,000.00

pain and suffering: $ 1,000.00

future noneconomic damages: $7,000.00

further, the percentage of fault attributed to plaintiff is

50% and the percentage of fault attributed to defeadant

is 50%, therefore plaintiff recovers a total sum of

$ 100,000.00.

/s/ ROBERT A. MOSSING

Clerk

(By): /ss/ Sara Fische

Deputy Clerk

Date: October 5, 1987

eee

D-1

APPENDIX D

MICHIGAN TRIAL REPORTER SUMMARIES

(Wayne County — Circuit Court — Detroit)

AUTO ACCIDENT — HEAD-ON COLLISION

Verdict: $20,000

Date of Verdict: 2/23/88 Judge: Marvin R. Stempien

Mediation Result: $12,500 Yanik

Plaintiff's Attorney(s): Howard J. Radner, Detroit

( Yanik)

Defendant's Attorney/(s): Kenneth C. Merritt,

Southfield

Age: 29 Sex: M_— Insurance Carrier: Aetna {Duguet)

Facts: Plaintiff Yanik was driving west on two lane 10

Mile Rd. at 3:00 a.m. when his vehicle was struck

head-on by Defendart Whitaker who was traveling the

opposite direction and had allegedly crossed the center

line. Defendant driver and his passenger were both

killed in this accident and there were suspicions of

alcohol involvement.

Plaintiff alleged the defendant was negligent in

crossing the center line and was the proximate cause

of his injuries.

Defendant contended that plaintiff's alleged injuries

did not constitute a serious impairment of body

function.

Alleged Injury: Seft tissue injury to back, mght knee,

left foot, head and neck.

tiaeetneeennmeetele

D-2

Expert Witnesses:

Plaintiff: Steven Newman, M:D. — Rehabilitation —

Southfield MI

Defendant: Thomas Ditkoff, M.D. — Orthopedic —

Southfield MI

Case Caption: Duane M. Yanik and Jon F. Buck v.

Theodore Monolidis, Adm. for John C. Whitaker and

Howard Linden, Adm. for Debra A. Duguet

Case Number: 84-433239-NI

Editor’s Note: Defendant Whitaker's estate settled with

plaintiff Buck prior to trial for $1500.

(Wayne County — Circuit Court — Detroit)

FALLDOWN — RESIDENCE WALKWAY

Verdict: $30,000

Date of Verdict: 2/10/88 Judge: Richard P. Hathaway

Mediation Result: $15,000

Plaintiff's Attorney(s): Sheldon L. Miller, Detroit

Defendant’s Attorney(s): Richard T. Haynes, Plymouth

Age: 20’s Sex: F Insurance Carrier: State Farm Ins.

Facts: Plaintiff, a social guest of the defendant, while

walking along defendant’s flagstone walkway stepped

into a depression, slipped and caught herself before

falling. Defendant had allegedly placed a rubber mat

over a missing piece of the walkway thus creating a

depression.

Plaintiff alleged defendant knew that the walkway

was defective, failed to warn her of the defect, and was

negligent in failing to properly repair the walkway.

Defendant contended there was no defect and if

D3

there was he did not know about it. Defendant also

contended that plaintiff had made arrangements to

dissolve her business before the accident occurred.

Alleged Injury: Sprained ankle and soft tissue injury to

back resulting in the dissolution of plaintiff’s window

business.

Expert Witnesses:

Plaintiff: None

Defendant: None

Case Caption: Patricia S. Pointek v. Gerald E. Burton

Case Number: 84-421327-NO

Editor's Note: Plaintiff's counsel advises that a surprise

witness at trial resulted in the defendant not con-

testing liability. Mediation sanctions were imposed.

(Oakland County — Circuit Court — Pontiac)

PREMISES — SHOTGUN DISCHARGE

Verdict: $300,000 plus mediation sanctions and costs

Date of Verdict: 1/15/88 Judge: Steven N. Andrews

Mediation Result: $125,000

Plaintiff Attorney(s): William M. Hatchett, Pontiac

Defendant’s Attorney(s): Joseph Sukup, Farmington

Hills

Age: 56 Sex: M Insurance Carrier: N/A

Facts: Plaintiff was one of several social guests at

defendant’s home where the defendant was hosting a

dinner and card party. Alcoholic beverages were

consumed. Allegedly the defendant’s wife was

assaulted by the plaintiff. The defendant went

—p-4

upstairs and returned with a loaded shotgun. A non-

party attempted to restrain the defendant and the

shotgun discharged striking the plaintiff in the back.

Plaintiff alleged he was a social invitee of

defendant, and that defendant was negligent in the

handling of the shotgun.

Defendant contended that it was the negligent inter-

ference of the non-party which caused the discharge

and the defendant was not negligent.

Alleged Injury: Gun shot wound to back with massive

soft tissue destruction exposing but not injuring the

spine.

Expert Witnesses:

Plaintiff: N/A

Defendant: N/A

Case Caption: Robert Spicer v. James Fisher

Case Number: 85-304599-NO

Editor’s Note:. The plaintiff sued the non-party in a sep-

arate action and it was dismissed.

(Wayne County — Circuit Court — Detroit)

PRODUCTS LIABILITY — FALL

FROM TRACTOR CAB

Verdict: $953,000 less 25% comparative yielded net

verdict of $714,750.

Date of Verdict: 6/24/88 Judge: Marvin R. Stempien

Mediation Result: $265,000

Plaintiff's Attorney(s): George T. Fishback, Detroit

Defendant’s Attorney(s): Loretta M. Ames, Detroit

Age: 51 Sex: M”’ Insurance Carrier: Self-insured

D-5

Facts: Plaintiff, on two occasions, slipped and fell while

exiting a Brigadier Tractor manufactured by the

defendant. In both instances the plaintiff had parked

too close to a wall to open the cab door far enough to

get down without first closing the door. Plaintiff

claimed he had to walk to the back of the step (on top

of fuel tank), closed the door, then descend using the

grab hand!es, when his foot slipped off the step,

causing a three foot fall.

Plaintiff alleged defective design of the

ingress/egress system as it placed the fuel tank point

so near the egress system that his boots could pick up

fuel and become slippery.

Defendant contended: (1) the system was safe as

designed; (2) plaintiff did not exit properly (i.e.

descend from the cab before closing the door); and

(3) plaintiff was contributorily negligent. _

Alleged Injury: Soft tissue injury to low back, claimed

permanent disability. Plaintiff claimed lost income of

$250,000.

Expert Witnesses:

Plaintiff: John Howard — Human Factors/Eng.

A Design — Dayton OH

Paul Cullis, M.D. — Neurologist — Troy

MI

Defendant: Allen Dorris, Ph.D. — Human Factors —

Peachtree City GA

Howard Bosscher — Accident Investi-

gator — Grand Rapids

Case Caption: Ernest Williams v. General Motors Corp.

Case Number: 85-505073-NP

D-6

(Wayne County — Circuit Court — Detroit)

FALLDOWN — DEPARTMENT STORE —

HARD CANDY ON FLOOR

Verdict: $20,000 less 40% comparative yielded net

verdit of $12,000 against K-Mart only.

Date of Verdict: 7/21/88 Judge: Louis F. Simmons, Jr.

Mediation Result: $30,000 K-Mart Corp.

Plaintiff's Attorney(s): John J. Cantarella, Pontiac

Defendant’s Attorney(s): Christopher R. Gullen, Troy

Age: 60's Sex: F Insurance Carrier: Self-insured

Facts: Plaintiff was a business invitee to a Detroit

Kresge Store which is a wholly owned subsidiary of

Defendant K-Mart Corp. The plaintiff slipped and fell

on an alleged unseen piece of hard candy as she

walked dpown an aisleway. Defendants Pearson and

McGill allegedly stole money from the plaintiff as

they helped her up from the floor.

Plaintiff alleged Defendant K-Mart was negligent in

failing to keep its aisleway cleared.

Defendant contended that witnesses claimed there

was nothing on the floor when the plaintiff slipped

and fell. Defendant further contended the plaintiff's

herniated disk was a pre-existing condition.

Alleged Injury: Low back soft tissue injury and a

herniated disc which radiates pain down one leg; pain

and suffering.

or Witnesses:

Plaintiff: None

Defendant: None

Case Caption: Rebecca M. Thornton v. K-Mart Corp.,

Thomas Pearson and Daryl McGill

oi BB =. = * a ee

D-7

Case Number: 85-526252NO

Editor’s Note: Defendants Pearson and McGill were dis-

missed during the trial for lack of evidence. Case is

closed. Judgment has been satisfied.

(Wayne County — Circuit Court — Detroit)

BOATING COLLISION — NIGHT — LAKE ST. CLAIR

Verdict: $10,000

Date of Verdict: 7/13/88 Judge: William J. Giovan

Mediation Result: $30,000 |

Plaintiff's Attorney(s): Richard J. Amberg, Jr., Pontiac

Defendant's Attorney/(s): Paul D. Galea, Detroit

Age: 30's Sex: M Insurance Carrier: N/A

Facts: Plaintiff and Defendant Militello were involved

in a nighttime boating collision on Lake St. Clair. The

defendant was operating a speedboat owned by

Co-Defendant Grippe at approximately 30 m.p.h. when

he struck the plaintiff's cruiser broadside causing the

plaintiff to fall from the deck and strike his head. The

parties denied using alcohol.

Plaintiff alleged: (1) the defendant was operating his

boat without lights; (2) his (plaintiff's) boat lights were

on; and (3) his injuries caused his dental practice to

suffer.

Defendant contended: (1) the plaintiff failed to keep

a proper lookout for other boats and was operating his

boat without lights; (2) his (defendant’s) lights were

on; and (3) the plaintiff’s claim for lost wages was

excessive.

Alleged Injury: Permanent soft tissue injury to back and

D-8

property damage to cruiser. Plaintiff claimed $500,000

in lost wages including lost future wages.

Expert Witnesses:

Plaintiff: Thomas Czubiak — Economist —

Farmington Hills MI

Ardie Grubaugh — Water Safety —

Oscoda MI

Defendant: None

Case Caption: Christopher Ford v. Mark Militello and

Robert Grippe

Case Number: 85-525814-NO

Editor’s Note: Plaintiff's motion tor costs was granted.

Judgment has been satisfied.

(Ingham County — Circuit Court — Lansing}

AUTO ACCIDENT — REAR END — INTERSECTION

Verdict: $1,800 for Jose only.

Date of Verdict: 9/16/88 Judge: Lawrence M. Glazer

Mediation Result: $15,000

Plaintiff's Attorney(s): Stuart J. Dunnings, III, Lansing

Defendant’s Attorney(s): Vincent P. Spagnuolo, Lansing

Age: N/A Sex: M&F Insurance Carrier: N/A

Facts: Plaintiff Jose had stopped his car in the left lane

in order to make a left turn and was waiting for

oncoming traffic to clear. Defendant was following

behind the plaintiff's car and was unable to stop in

time to avoid striking the plaintiff's car in the rear.

Plaintiff Maria was a front seat passenger in the plain-

tiff’s car.

D-9 -

Plaintiffs alleged that the defendant failed to stop in

time to avoid striking the plaintiff's car and that the

accident was the proximate cause of Plaintiff Jose's

injuries which constituted a serious impairment to a

body function. : .

Defendant contended: (1) he was not negligent;

(2) the plaintiff's left turn signal was not activated and

he was faced with a sudden emergency; and (3) the

plaintiff did not suffer a serious impairment to a body

function.

Alleged Injury: Plaintiff Jose - permanent soft tissue

injuries to back and neck. Plaintiff claimed three

years of lost income. Plaintiff Maria - foot injury.

Expert Witnesses:

Plaintiff: N/A

Defendant: N/A

Case Caption: Jose and Maria Aguilar v. Daniel

Babcock

Case Number: 83-51275

Editor’s Note: Case is closed.

(Oakland County — Circuit Court — Pontiac)

AUTO ACCIDENT — INTERSECTION —

THRESHOLD INJURY

Verdict: $12,000

Date of Verdict: 9/88 Judge: Gene Schnelz

Mediation Result: $65,000

Plaintiff's Attorney(s): Robert L. Badgley, Bloomfield

Hills

Defendant’s Attorney(s): Harry A. Meyer, Birmingham

Age: 35 Sex: F Insurance Carrier: AAA

D-10

Facts: Plaintiff was driving through an intersection

with a green light when the defendant’s vehicle struck

her vehicle. The defendant allegedly ran a red light as

he was making a left turn. Plaintiff was not taken to a

hospital and returned to work after the accident.

Plaintiff alleged that her injuries had reached the

threshold and that her damages were sufficient

enough to warrant compensation.

Defendant contended that he was not negligent and

that the injuries were not sufficient to meet the

threshold requirements.

Alleged Injury: Soft tissue injuries, headaches which

may last a lifetime, pain and suffering.

Expert Witnesses:

Plaintiff: Paul Cullin, M.D. — Neurologist — Troy

MI — LIVE

Defendant: None

Case Caption: Pamela Kildal v. Ronald R. Cobelmish

Case Number: 87-328315-NI

Editor’s Note: Case is closed.

(Kalamazoo County — Circuit Court — Kalamazoo}

AUTO/TRUCK ACCIDENT — LIABILITY ADMITTED

Verdict: $150,000 less 25% for a net verdict of $112,500

plus interest.

Date of Verdict: 10/88 Judge: Richard Lamb

Mediation Result: $40,000

Plaintiff's Attorney(s): Sanford L. Steiner, Kalamazoo

Defendant’s Attorney(s): Lee C. Patton, Southfield

Age: 37 Sex: M Insurance Carrier: N/A

D-11

Facts: Plaintiff was driving in the left lane of I-94 and a

truck owned by Defendant Contract Freightors was

being driven in the right lane. The truck ran the plain-

tiff's car off the road causing the car to spin and strike

an abutment. Defendant admitted its driver was negli-

gent and the case proceeded on the issue of compara-

tive negligence and damages.

Plaintiff alleged that the defendant’s driver was

solely responsible for the accident and the subsequent

soft tissue back injury.

Defendant contended that the plaintiff was also

driving erratically and that the plaintiff's injuries were

not as severe as alleged.

Alleged Injury: Soft tissue injuries to the back leaving

plaintiff unable to sit for the long periods necessary to

perform his job as a crane operator.

Expert Witnesses:

Plaintiff: Jonathan Hopkins, M.D. — Neurosurgery —

Kalamazoo MI

Defendant: P. Wiley, M.D. — Neurologist — Grand

Rapids MI

Case Caption: Paul Winn v. Contract Freightors

Case Number: C86-1746-NI

Editor’s Note: Case was settled after trial for $150,000.

(Wayne County — Circuit Court — Detroit)

AUTO ACCIDENT — SUDDEN EMERGENCY

Verdict: $15,000 joint and several.

Date of Verdict: 3/17/88 Judge: Richard P. Hathaway

Mediation Result: $10,500

Plaintiff's Attornev(s): David L. Rosenthal, Southfield

D-12

Defendant’s Attorney(s): Gregory Gromek, Detroit

Age: 21 Sex: M Insurance Carrier: AAA

Facts: Plaintiff was a passenger in a vehicle along with

his brother Co-Defendant Bassim and being driven by

anothcr brother Co-Defendant Majid. Co-Defendant

Majid claimed he lost control of his vehicle when the

tie rods broke, causing him to bounce off the embank-

ment on one side of the freeway, cross traffic and slide

into the ditch on the other side.

Plaintiff alleged the defendant driver was negligent

in failing to maintain his vehicle and to drive safely

according to the road conditions. Plaintiff further

alleged his injuries constituted a serious impairment

to body function.

Defendant contended they had a sudden emergency

and also contended plaintiff did not suffer a serious

impairment to body function.

Alleged Injury: Soft tissue injury to back.

Expert Witnesses:

Plaintiff: None

Defendant: Stuart Katz, M.D. — Orthopedic Surgeon

— Detroit MI

Case Caption: Amad Mattia v. Majid Mattia and

Bassim Mattis d/b/a Shop-Rite Foods

Case Number: 85-516043-NI

Editor’s Note: Judgment has been satisfied.

(Wayne County — Circuit Court — Detroit)

AUTO ACCIDENT — REAR END —

LIABILITY ADMITTED

Verdict: $12,500

I ORL LEG a + Be oo

Un Ss) SOMES as 06

Xv

D-13

Date of Verdict: 3/2/88 Judge: Kathleen MacDonald

Mediation Result: $4,500 ~

Plaintiff's Attorney(s): Phillip L. Sternberg, Springfield

Defendant’s Attorney(s): Richard E. Eaton, Detroit

Age: 30’s Sex: F — Insurance Carrier: Allstate Ins.

Facts: Plaintiff's vehicle was rear-ended by defendant’s

vehicle. Defendant admitted liability and this case

was tried on whether the plaintiff sustained a serious

impairment to a body function.

Defendant contended the plaintiff did not receive a

serious impairment to body function from this acci-

dent as her injury was related to a prior injury.

Alleged Injury: Soft tissue injuries to neck and hack.

Expert Witnesses:

Plaintiff: None

Defendant: None

Case Caption: Pearl Knighten v. Hubert Allen

Case Number: 84-416995-NI

Editor’s Note: Plaintiff's Motion for Sanctions was

granted. Judgment has been satisfied.

(Wayne County — Circuit Court — Detroit)

AUTO ACCIDENT — REAR END —

LIABILITY ADMITTED

Verdict: $100,000

Date of Verdict: 5/26/88 _ Judge: Charles S. Farmer

Mediation Result: $21,000

_ Plaintiff's Attorney(s): Jeffrey A. Winton, Southfield

Defendant’s Attorney(s): John C. Brennan, Southfield

Age: 30 Sex: M Insurance Carrier: Michigan

Guarantee Fund

D-14

Facts: Plaintiff and defendant were involved in a night-

time accident on the Fischer Freeway near Gratiot in

Detroit. Plaintiff had stopped at a red light when

defendant’s semi-truck struck the rear of his vehicle

forcing plaintiff's face to hit the steering wheel.

Defendant admitted negligence in causing the acci-

dent and the case was tried on the issue(s) of proxi-

mate cause and/or damages.

Alleged Injury: Damage to soft tissue in neck and lower

back. Use of a mandibular orthopedic appliance was

required eight months after accident when plaintiff

developed TMJ.

Expert Witnesses: =

Plaintiff: None

Defendant: None

Case Caption: David L. Moore v. Casper Cartage Inc.

Case Number: 84-430478-NI

Editor’s Note: Judgment has been satisfied.

(Wayne County — Circuit Court — Detroit)

INSURANCE — DENIAL OF NO-FAULT BENEFITS

Verdict: $17,300

Date of Verdict: 6/29/88 Judge: William J. Giovan

Mediation Result: $22,500

Plaintiff's Attorney(s): Denise L. Mitcham, Detroit

Defendant’s Attorney(s): George J. David, Mt. Clemens

Age: 20's Sex: F

Facts: Plaintiff was injured in an automobile accident

and filed a claim for medical and wage loss expenses

with defendant, her insurer. Defendant paid benefits

D-15

to the plaintiff for several weeks, and then terminated

the benefits after an independent medical evaluation

was performed. Plaintiff filed suit when her benefits

were discontinued.

Plaintiff alleged she had a valid contract with the

defendant and was entitled to the benefits as her inju-

ries were sustained in an automobile accident.

Defendant contended they paid plaintiff benefits

until they received an independent medical evalua-

tion. Defendant argued that plaintiff did not suffer an

injury as a result of the accident and therefore termi-

nated her benefits.

Alleged Injury: Soft tissue injuries to neck and back.

Expert Witnesses:

Plaintiff: None

Defendant: None

Case Caption: Mary M. Hollen v. Automobile Club

Insurance Association

Case Number: 84-427243-CK

sor peeeey

beet ath sea

E-1

APPENDIX E

RELEVANT STATUTORY PROVISIONS

46 U.S.C. § 688 Recovery for injury to

(a)

(b)

or death of a seaman

Application of railway employee statutes;

jurisdiction

Any seaman who shall suffer personal injury in

the course of his employment may, at his elec-

tion, maintain an action for damages at law,

with the right of trial by jury, and in such

action all statutes of the United States modi-

fying or extending the common-law right or

remedy in cases of personal injury to railway

employees shall apply; and in case of death of

any seaman as a result of any such persoral

injury the personal representative of such

seaman may maintain an action for damages at

law with right of trial by jury, and in such

action all statutes of the United States con-

ferring or regulating the right of a*tion for

death in the case of railway employees shall be

applicable. Jurisdiction in such actions shall be

under the court of the district in which the

defendant employer resides or in which his

principal office is located.

Limitation for certain aliens;

applicability in lieu of other remedy

No action may be maintained under subsec-

tion (a) of this section or under any other mari-

time law of the United States for mainte-

E-2

nance and cure for damages for the injury or

death of a person who was not a citizen or per-

manent resident alien of the United States at

: the time of the incident giving rise to the

action if the incident occurred —

(A) while that person was in the employ of

an enterprise engaged in the exploration,

development, or production of off-shore

mineral or energy resources — including

but not limited to drilling, mapping, sur-

veying, diving, pipelaying, maintaining,

repairing, constructing, or transporting

supplies, equipment or personnel, but not

including transporting those resources by

a vessel constructed or adapted primarily

to carry oil in bulk in the cargo spaces;

and

(B) in territorial waters or waters over-

laying the continental shelf of a nation

other than the United States, its terri-

tories, or possessions. As used in this para-

graph, the term “continental shelf” has

the meaning stated in article I of the 1958

Convention on the Continental Shelf.

(2) The provisions of paragraph (1) of this sub-

section shall not be applicable if the person

bringing the action establishes that no remedy

was available to that person —

(A) under the laws of the nation asserting

jurisdiction over the area in which the

incident occurred; or

(B) under the laws of the nation in which,

at the time of the incident, the person for

whose injury or death a remedy is sought

maintained citizenship or residency.

a

;