Petition for Writ of Certiorari — Plaisance Dragline & Dredging Co. v. Verdin

Suoreme Court, U.S.

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NO. 971.487 MARY - 1998

Sega Np “OFFICE OF THE GbenA

In the

Supreme Court of the United States

OCTOBER TERM 1997

Plaisance Dragline & Dredging Co., Inc.,

Petitioner

Vv.

Jay M. Verdin,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Fred E. Salley

Counsel of Record

Lee M. Peacocke

Salley & Associates

3510 N. Causeway Boulevard

Suite 601

Metairie, LA 70002

Counsel for Petitioner

Plaisance Dragline &

Dredging Co., Inc.

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

i

QUESTIONS PRESENTED

This is an action for employment related personal in-

juries arising from a series of land-based accidents that was

brought under the Jones Act, 46 U.S.C. § 688, by a roustabout

who had an employment related connection to a spud barge

engaged in shore-side construction projects that, the parties

agree, totaled 70% of his employment with Plaisance

Dragline & Dredging Co., Inc.

| #

IV.

WAS THE ROUSTABOUT’S EMPLOYMENT

RELATED CONNECTION TO THE SPUD

BARGE SUFFICIENTLY SUBSTANTIAL IN

NATURE SO AS TO ALLOW HIM TO

QUALIFY AS A “SEAMAN” AS THAT TERM

IS USED IN THE JONES ACT, 46 U.S.C. § 688?

DID THE TRIAL COURT PROPERLY IN.

STRUCT THE JURY ON THE SUBSTANTIAL

IN NATURE REQUIREMENT FOR JONES

ACT STATUS SO AS TO PERMIT THE JURY

TO DISTINGUISH BETWEEN LAND-BASED

AND SEA-BASED WORKERS?

WAS THE FAILURE TO SUBMIT CERTAIN

SPECIAL JURY INTERROGATORIES THAT

IDENTIFY THE SPECIFIC BASIS FOR THE

PETITIONER’S LIABILITY, IN AND OF

ITSELF, SO PREJUDICIAL AS TO CON.

STITUTE REVERSIBLE ERROR?

IN A CIVIL ACTION, WHAT IS THE EVIDEN-

TIARY STANDARD THAT A PARTY IS RE-

QUIRED TO MEET IN ORDER FOR THE

TRIAL COURT TO CONDUCT A POST.

VERDICT INQUIRY INTO WHETHER THE

JURY RECEIVED EXTRINSIC INFORMA-

TION?

ii

Rule 29.1 LIST

The only subsidiary of Plaisance Dragline & Dredging

Company, Inc. is Lester J. Plaisance, Inc., which is not a whol-

ly owned subsidiary. Plaisance Dragline & Dredging Com-

pany, Inc. does not have a parent corporation.

AY RARER TV

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR MEW NIE hoster i

oe Etc ayn aga, NORE NC MTU PROD ESS I ii

Te ci iii

TABLE OF AUTHORITIES AND is ¢yty : Saaaee vi

NG 1

ine ce 2

FEDERAL PROVISIONS INVOLVED........................... 2

Aree OF THE CASE 2

REASONS FOR GRANTING THE yp fae yi) aia 7

I. The Decision of the Fifth Circuit is in

Conflict with Decisions From the First,

Sixth, and Ninth Circuit Courts of Appeals

On The Issue of Seaman Status Under the

“oo cora cs ch een NAS se ROI ad aE eee 7

II. This Case Presents an Important Question

of First Impression Concerning Whether the

Failure to Use Special Interrogatories Can

Constitute an Abuse of Discretion in Cases

Involving Multiple Claims for Liability........... 14

iv

TABLE OF CONTENTS (continued)

Page

II. A Writ of Certiorari is Necessary in Order

to Set Guidelines for Conducting a Post-

Trial Inquiry Into Whether a Jury Re-

ceived Extra-Judicial Information..................... 16

APPENDIX:

App.-A Judgment of the United States Court of Appeals

Re ia Re Ge iacatsc ent staceeinthcecnhieicbieeiadnicna A-l

App.-B Minute Entry of United States District Court for

Rats Tee TI scsi isk sncsesciininclasdaveesingiawassseredbininadionss A-2

App.-C Judgment of the United States District Court for

ta Timbers TI ses isnsinsptnnsserecatnseseinessiuubavicheusctanabananss A-4

App.-D Text of Jones Act, 46 U.S.C. §688(a)............. A-6

Federal Rule of Civil Procedure Rule 49................s0008 A-5

United States District Court Eastern District Local Rule

BEI 5 scnvics viiepcsnseitbsos ivieisnteshansiamneipaiapsadiabasouemcistaince tiicainn A8

App. E Defendant’s Requested Jury Charge

FRU. AUR: cassis iptigserseakeapdeundie sina cha obindiidensdabinineinbenseins A-9

Defendant’s Requested Jury Charge No. 49................ A-10

Defendant’s Requested Jury Charge No. 51................ A-10

Defendant’s Requested Jury Charge No. 52................ A-11

CUNT Me Gee I FS oe

HR IEE OR

V

TABLE OF CONTENTS (continued)

Page

APPENDIX (continued)

Defendant’s Requested Jury Charge No. 53................ A-12

App. F = Jury Interrogatories.............cccccccccc0-.. A-13

App.G = Excerpt from Trial Transcript of

Summation of Plaintiffs Fi , AOS SSD A-17

App.H Photographs of S/B REBEL I, Plaintiff's

ENG 2 OR BIND i A-20 - A-23

vi

TABLE OF AUTHORITIES

CASES Page

Cha~dris, Inc., v. Latsis, 515 U.S. 347, 132 L.Ed

De BAG, LEB BEE. BETR CGA ccccsescctscccsccccessscess 5,10,12

Harbor Tug & Barge Co. v. Papai, U.S. :

137 L.Ed 2d 800, 117 S.Ct. 1535 (1997)............. 7,8,10

Southwestern Marine, Inc. v. Gizoni, 502 U.S. 81,

116 L.Ed 2d 405, 112 S.Ct. 486 (1991)..........000000000... 6

Abell v. Potomoc Insurance Co., 858 F.2d 1104

PG GG, Bee neduichcah ste encsaissadinsptaneanccemcbbaddaniensibiasadabcic 19

Bernard v. Binnings Construction Co., 741 F.2d

iE Re | | a eee sie ee 5,10-11

Cabral v. Healy Tibbets Builders Co., 118 F.3d

Same SERe GU, Ta he ves cssisiesinssnasnesertnecidadbaventomateibanan 8

DiGiovanni v. Traylor Brothers, Inc., 959 F.2d

1119 (1st Cir. (1992) en bane..........ccccccceseeee 5,7,9,11,12

Ducote v. V. Keeler & Co., 953 F.2d 1000

eS, RRRIELE PA SEs Ss ch Aa ee 11

Ellender v. Kiva Construction & Engineering,

Inc., 909 F.2d 808 (Sth Cir. 1990)........................0005 11

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532

ROE AAUP Si vevscnicthasctincicnbinbiedendiietiaidpeebsa teat ei 19

vii

TABLE OF AUTHORITIES (continued)

CASES Page

Hatch v. Durocher Dock and Dredge, Inc., 33 F.3d

scispette wipes nace Tes. Te eS ELE TRS ETT 7

Offshore Co. v. Robison, 266 F.2d 769

eertee ses dh cred AA ERATE 5,8

Pavone v. Mississippi Riverboat Amusement

Corp., 52 F.3d 560 (5th Cir. 1995)... 9

Sharp v. Wasau Insurance Co., 917 F.2d 885

cipitation COE aE STL ICO 11

Skidmore v. Baltimore & Ohio Railroad Co., 167

rman A Rs I a ee A 15

Tonneson v. Yonkers Contracting Co., Inc.,

oe we Oe eS )

Cabral v. Healy Tibbets Co., 1995 AMC 2099

ee Oe sag eT eT ROE GLUCAN 8

Gipson v. Kajima Engineering and Construction,

Inc., 972 F. Supp. 537 (C.D. Cal. ___, ) SEE 12

Nielson v. Weeks Marine, Inc., 910 F. Supp. 84

sche tae Baavae ag, te ON TTS ARE 12

O'Hara v. Weeks Marine, Inc., 910 F. Supp. 257

CII I tices eos cata tas 3 12

vill

TABLE OF AUTHORITIES (continued)

CASES Page

Sanford v. Kostmayer Construction Co.,

891 F. Supp. 1201 (B.D. La. 1995).......... ee eeeeeeeeees 8

Snowden v. Woodington Corporation,

963 F. Supp. 526 (E.D. Va. 1997)..............scssccsceceeees 12

Taylor v. Cooper River Constructors,

830 F. Supp. 300 (D.S.C. 1993)....ccccccsscesssesseecseesseenees 12

STATUTES

EE ee, RRR RRO IEDR MAS AICS: 2

Oe a er eee 2

USO Oe ea 2

OTHER AUTHORITIES

Federal Rule of Civil Procedure Rule 49..............0......00.. 2

Federal Rule of Evidence 606(b)..................cccccccecceeceeceeeees 18

United States District Court Eastern District

BE SRA in BE Wn REN oP ae 2

ix

TABLE OF AUTHORITIES (continued)

Page

OTHER AUTHORITIES (continued)

MODEL CODE OF PROFESSIONAL RESPON.

Sropansinscphe Bhaecs alee oe ee oH LONE a 18

MODEL CODE OF PROFESSIONAL RESPON.:

ses esctnnaie in nears bier one ig MT NG TE 18

ABA Comm. on Professional Ethics and

Grievances, Formal CRD 18

Allbritton, Seaman Status in Wilander’s Wake,

OS Tul. L. Rev. $78 (1004).......ccccecccsessssseseesecsc....... 11,12

Brodin, Accuracy, Efficiency and A ccountability

in the Litigation Process-The Case for the Fact

Verdict 59 U. Cin. L. Rev. 15 SEE ACE ele 15

Crump, Jury Misconduct, Jury Interviews and the

Federal Rules of Evidence: Is the Broad Ex-

clusionary Principle of Rule 606(b) Justified?

Oe Were We, Se CO Se 17

Diehm, Impeachment of Jury Verdicts: Tanner v.

United States and Beyond, 65 St. John’s L.

er ae need ae 17

x

TABLE OF AUTHORITIES (continued)

Page

OTHER AUTHORITIES (continued)

Robertson, Continuing Issues in the Rights of

Injured Maritime Workers in The Wilander-

Gizoni Era, 24 Rutgers L.J. 443 (1998)............00.0..... 8,11

Comment, Limitations on Attorney Postverdict

Contact with Jurors: Profecting the Criminal

Jury at the Expense of the Defendant, 94 Col.

Rink: OU, Se ea aati tiacinicl teinebdaceh casidintuldinliaaiantnaebtocenmsnes 17

1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

Plaisance Dragline & Dredging Co., Inc.,

Petitioner

Vv.

Jay M. Verdin,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

Plaisance Dragline & Dredging Company, Inc. respect-

fully petitions for a Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Fifth Circuit

in this case.

OPINiONS BELOW

The United States Court of Appeals for the Fifth Cir-

cuit did not issue an opinion in this case, but simply affirm-

ed the trial court judgment pursuant to Rule 47.6 of the Local

Rules for the United States Court of Appeals for the Fifth

Circuit. The court of appeals’ per curiam affirmance of the

trial court’s judgment has not yet been published. The rul-

ings of the trial court are also not reported.

2

JURISDICTION

The United States Court of Appeals for the Fifth Cir-

cuit issued its judgment on December 10, 1997. This Court

has jurisdiction over this matter pursuant to 28 U.S.C. §

1254(1).

FEDERAL PROVISIONS INVOLVED

This case concerns legal issues arising under the Jones

Act, 46 U.S.C. § 688&(a), Federal Rule of Civil Procedure 49

and Local Rule 13.05 of the Uniform Local Rules for the

Easterr District of Louisiana. As a consequence of their

length, the text of these provisions are set forth in the Ap-

pendix to this Petition. App.D.

STATEMENT

Respondent, Jay M. Verdin, brought suit against his

employer, the Petitioner, Plaisance Dragline & Dredging Co.,

Inc. in the United States District Court for the Eastern

District of Louisiana. Asserting that he was a Jones Act

seaman, the suit sought damages for personal injuries sus-

tained by the respondent, who claims to have suffered several

episodes of low back pain over a two day period while per-

forming land-based assignments at his employer’s main yard.

Federal jurisdiction was asserted pursuant to 28 U.S.C. §

1331.

The petitioner is engaged in the dragline business,

primarily within a thirty mile radius of its principal place

of business in Golden Meadow, Louisiana. The respondent

was employed as a roustabout, who was usually assigned to

3

particular draglines in accordance with his employer’s job

requirements. The particular dragline was usually moved to

location through the use of a spud barge, where it would

either move on to land or work along the banks of the bayou

from the deck of the barge. In addition, the respondent was

allowed the opportunity to operate a small “lugger” type

vessel, M/V U.S. GRANT, to earn extra income. M/V USS.

GRANT was responsible for providing the motive power for

moving the barge to the work location, since the barge itself

was not self-propelled.

However, the operation of M/V U.S. GRANT only con-

stituted 14% of the respondent’s employment with the peti-

tioner. He spent an equal portion of his employment perfor-

ming entirely land-based labor, such as cutting grass or con-

structing parking lots. The remaining 70% of his employment

was spent as a roustabout working on land and on the barge

with the dragline to which he was assigned. These figures

concerning the portion of the roustabout’s job assignments

are derived from his pay records and are not disputed by the

parties.! The petitioner has always conceded that the respon-

dent had an employment related connection to the spud barge

that furthered its “mission.” In addition, the petitioner no

longer disputes that the spud barge can be a Jones Act vessel.

What is disputed is whether the assignment as a

roustabout was sufficiently substantial in nature so as to

qualify the respondent as a Jones Act seaman. Again, the

underlying facts are not in dispute. The barge and the

1 As both the trial court and the appellate court failed to issue opinions

in this case, the petitioner has included the portion of the respondent’s

closing argument to the jury in the Appendix to establish the percentages

of the employees’ labor that was asserted to be vessel related for purposes

of establishing Jones Act status. App. G.

4

dragline would initially be moved to the work location by

operation of the lugger craft, which movement is included

within the previously identified 14% of the roustabout’s work

that was spent assigned to operate the lugger. Upon arrival

at the job site, the lugger craft would shut down and typically

remain unmanned for the remainder of the project. All

dragline work was then performed either from the barge or

on land. Furthermore, the dragline would sometimes be com-

pletely moved on to the shore, for periods as long as a month

at a time.

It is undisputed that no work could be done on the barge

while it was moved across the water. Furthermore, the

dragline and work crew could not operate from the barge

unless it was firmly secured in place, through the use of its

spuds, next to land. Photographs of this general configura-

tion were introduced into evidence by the respondent in sup-

port of his claim to seaman status and are included in the

Appendix filed with this Petition for the Court’s considera-

tion. App. H.

At all times during the course of these projects, after

the barge had been moved on to location, the employees re-

mained day laborers who traveled to work by company vehi-

cle and returned home at the end of the work day. There is

also no dispute that daily activities frequently took the

workers back and forth aboard the barge during the course

of a normal work day. Any movement of the barge at the work

location consisted of incidental repositioning of the structure

either by use of the lugger or by the dragline itself. These

repositioning movements occurred infrequently and never

exceeded a total of several hundred feet in distance.

5

The petitioner initially moved for summary judgment

on the issue of Jones Act seaman status relying on the case

of DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119 (1st

Cir. 1992) en banc. The petitioner argued that the

roustabout’s connection to the spud barge did not qualify him

for Jones Act seaman status because these assignments were

exclusively to the barge’s shoreside enterprises. The

Honorable United States District Court Judge Martin L.C.

Feldman denied this motion. In his ruling, Judge Feldman

observed that DiGiovanni was inconsistent with binding

precedent from the United States Court of Appeals for the

Fifth Circuit, in particular, Bernard v. Binnings Construc-

tion Co., 741 F.2d 824 (5th Cir. 1984),

During the pendency of this action in the trial court,

this Court issued its decision in Chandris, Inc., v. Latsis, 515

U.S. 347, 132 L.Ed.2d 314, 115 S.Ct. 2172 (1995). At trial,

the petitioner tendered jury charges in accordance with both

the Latsis and DiGiovanni decisions. In addition, the peti-

tioner submitted certain charges attempting to define the

“substantial in nature” requirement set forth in Latsis in

terms of the sea-going nature of the employee’s vessel related

connection. App. E. These charges were rejected by the trial

court which adhered to the Fifth Circuit’s Pattern Jury In-

struction on seaman status as first enunciated in Offshore

Co. v. Robison, 266 F.2d 769 (5th Cir. 1959). The trial court

did include a jury charge that stated that the employment

related connection must be “substantial in nature” in accor-

dance with the language from Latsis, but the petitioner ob-

jected that this charge, taken as a whole, was inadequate in

meaningfully distinguishing between land-based workers and

sea-based workers, the latter of whom alone qualify as Jones

Act seamen.

6

In addition, over the objection of the petitioner, the trial

court cumulated all of the respondent’s alleged injuries over

a two day period into a single jury interrogatory for each issue

of unseaworthiness, negligence, causation and comparative

negligence. App. F. After its deliberations, the jury found

seaman status arid Jones Act negligence. The jury did not

find any unseaworthiness. A very substantial damage award

was also returned by the jury.

Within the time delays allowed by law, the petitioner

filed post-judgment motions challenging the jury’s finding

of seaman status. In addition, the petitioner moved for a new

trial requesting that the trial court conduct a hearing on

possible improper contact with members of the jury by an

observer in the court room. The motions were denied and the

trial court refused to hold a hearing, ruling instead that the

petitioner had failed to bring forward credible evidence that

the jury had received extrinsic information. App. B.

A timely appeal to the United States Court of Appeals

for the Fifth Circuit was taken from the post-trial motions.

The Fifth Circuit affirmed the trial court’s ruling per curiam

without opinion, apparently adhering to its Pattern Jury In-

structions on seaman status and vessel status. In affirming,

the Fifth Circuit necessarily rejected contrary authority from

the United States Courts of Appeals for the First, Sixth and

Ninth Circuits on seaman status that were cited by the peti-

tioner. At oral argument, the panel of the Fifth Circuit sug-

gested that this Court’s decision in Southwestern Marine, Inc.

v. Gizoni, 502 U.S. 81, 116 L.Ed. 2d 405, 112 S. Ct. 486 (1991),

was controlling and further supported a finding of seaman

status since the particular employee in Gizoni was not in-

volved in any sea-going activities.

7

REASONS FOR GRANTING THE PETITION

1. The Decision of the Fifth Circuit is in

Conflict with Decisions from the First, Sixth

and Ninth Circuit Courts of Appeals on the Issue

of Seaman Status under the Jones Act

It is respectfully submitted that in affirming the trial

court’s rulings, the United States Court of Appeals for the

Fifth Circuit failed to properly recognize the importance of

the substantial connection inquiry into seaman status, as

recently emphasized by this Court in Harbor Tug & Barge

Co. v. Papai, USS. , 117 S.Ct. 1535, 137 L.Ed. 2d 800

(1997). Thus, the Fifth Circuit has impermissibly blurred the

distinction between land and sea-based workers by allowing

land-based workers to acquire seaman status without main-

taining a connection to a vessel that is sufficiently substan-

tial in nature. In reaching this result, the Fifth Circuit re-

jected decisions from other Circuit Courts of Appeals and even

district courts in other circuits, which would deny the respon-

dent seaman status as a matter of law.

In particular, both the District Court and the Appellate

Court rejected the seaman status inquiry adopted by the

United States Court of Appeals for the First Circuit in the

case of DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119

(1st Cir. 1992). DiGiovanni has also become the approach

followed by the United States Court of Appeals for the Sixth

Circuit in resolving whether land-based employees can

qualify for Jones Act status by virtue of an employment

related connection to a vessel in navigation. Hatch v.

Durocher Dock and Dredge, Inc., 33 F.3d 545, 548 (6th Cir.

1994). The trial court in this case expressly refused to follow

DiGiovanni, instead holding that the Fifth Circuit’s 40 year

8

old test from Offshore Co. v. Robinson, remains the proper

test for determining seaman status. Thus, there is a direct

conflict between the Circuits on which test to apply in deter-

mining whether or not a particular land-based maritime

emplcyees can qualify as a Jones Act seaman. See also, San-

ford v. Kostmayer Construction Co., 891 F.Supp. 1201, 1206

(E.D. La. 1995Xrecognizing that DiGiovanni not followed in

Fifth Circuit), Robertson, Continuing Issues in the Rights of

Injured Maritime Workers in The Wilander-Gizoni Era 24

Rutgers L. J. 443, 461-62 (1993Xrecognizing Circuit conflict).

In addition, by way of post-trial motions and on appeal,

the petitioner argued that a United States District Court deci-

sion in the case of Cabral v. Healy Tibbets Co., 1995 AMC

2099 (D. Haw. 1995), was further authority for the argument

that the respondent lacked seaman status as a matter of law.

During the pendency of the appeal of the instant case, the

United States Court of Appeals for the Ninth Circuit affirmed

the Cabral decision. Cabral v. Healy Tibbits Builders, Inc.,

118 F.3d 1363 (9th Cir. 1997). In affirming the trial court,

the Ninth Circuit was able to interpret this Court’s most re-

cent decision, Harbor Tug & Barge Co. v. Papai, and apply

it to a factually similar case in order to deny seaman status

as a matter of law. Cabral v. Healy Tibbits Builders, Inc.,

118 F.3d at 1366. Both decisions in Papai and Cabral were

brought to the attention of the Fifth Circuit by cor-

respondence submitted pursuant to Federal Rule of Appellate

Procedure 28(j).

In light of the Fifth Circuit’s failure to address these

conflicting decisions, it, like the trial court, is content to con-

tinue to apply the Robison-Bernard test to determine seaman

9

status for Jones Act employees. See also, Pavone v. Mississippi

Riverboat Amusement Corp., 52 F.3d 560, 569-70 (5th Cir.

1995) (post-Latsis case applying Robison-Bernard test). It

should be noted that the United States Court of Appeals for

the Second Circuit also follows a modified version of this Fifth

Circuit test. Tonneson v. Yonkers Contracting Co., Inc., 82

F.3d 30, 34 (2d Cir. 1996). In doing so, the Second Circuit

expressly declined to follow DiGiovanni. Id.

For purposes of identifying the conflict between the Cir-

cuits and how it applies to this case, it must be recognized

that all of the decisions that are in conflict concern land-based

workers whose job assignments take them aboard structures

secured in place or along the shoreline. As with the respon-

dent in this case, the workers never perform any work aboard

these structures during the most significant navigational

movement of the structure across water. Uniformly, the

workers are not even aboard the structure during this

movement.

Instead, the workers simply board the structure when

it is secured into place and, upon completion of their assign-

ed duties at the end of the work day, they leave the struc-

ture. While these assignments may take the workers aboard

the structure for an entire work day on a daily basis, their

assignments to these structures, rarely, if ever, take them

to sea with the structure. The conflict therefore focuses upon

whether this employment related connection is adequate for

purposes of acquiring seaman status under the Jones Act,

particularly in light of this Court’s recent decision in Papai.

Under the Fifth Circuit’s traditional Robison test, the

shoreside employment related connection alone is sufficient

10

to acquire seaman status, if it is sufficiently substantial in

duration. This is because the Fifth Circuit’s test is very broad

in scope. For example, in pertinent part, the jury was in-

structed in this case as follows:

Plaintiff, must prove that the capacity in which he was

employed or the duties that he performed contributed

to the function of a vessel or fleet of vessels or to the

accomplishment of the vessel’s mission or to the opera-

tion or maintenance of the vessel during its movement

or while at anchor for the vessel’s future trips.

The petitioner has objected to this standard throughout this

case for its failure to adequately distinguish land-based

workers from true Jones Act seamen.

Furthermore, as this Court’s recent decision in Papai

makes clear, the emphasized language is absolutely contrary

to the substantial connection requirement of seaman status.

Harbor Tug & Barge Co. v. Papai, 117 S.Ct. at 1542, 137 L.Ed.

2d at 812. Simply engrafting a portion of the Latsis decision

on to this test, as the trial court did in this case, is inade-

quate in making the necessary distinction required by a pro-

per application of the substantial connection inquiry. Indeed,

the Fifth Circuit has yet to address the substantial connec-

tion requirement of Jones Act status, although the issue was

squarely presented to it by this appeal.

Instead of distinguishing land-based workers from

seamen based upon a qualitative analysis of the nature of

the employee’s connection to a vessel, the Fifth Circuit has

instead relied upon a test of whether a particular structure

is a Jones Act vessel in order to identify who is a Jones Act

seaman. This test, first set forth in the case of Bernard v.

1]

Binnings Construction Co., 741 F.2d 824 (5th Cir. 1984) looks

to objective features of the structure in order to determine

if it is a “vessel’’. If these objective features support a fin-

ding of vessel status, the land-based worker is thereby

transformed into a Jones Act seaman.

Thus, in most cases involving land-based employees,

seaman status in the Fifth Circuit has frequently turned upon

the issue of whether a particular structure qualifies as a

Jones Act vessel. This approach has not only been criticiz-

ed, Robertson, Continuing Issues 24 Rutgers Law Journal at

461 (“too elaborate and too ambiguous”), Allbritton, Seaman

Status in Wilander’s Wake, 68 Tul. L, Rev. 373, 392 (1994X“a

confusing and tortured exercise in mental gymnastics”’-), but

has also led to inconsistent results within the Fifth Circuit

itself. Compare Ellender v. Kiva Construction & Engineer-

ing, Inc., 909 F.2d 803 (5th Cir. 1990) with Ducote v. V. Keeler

& Co., 953 F.2d 1000 (5th Cir. 1992) and Sharp v. Wasau

Insurance Co., 917 F.2d 885 (5th Cir. 1990). In DiGiovanni

v. Traylor Brothers, Co., 959 F.2d 1119 (1st Cir. 1992) the

First Circuit rejected this analysis for being too mechanistic

and bestowing seaman status upon workers who were only

aboard the vessel during non-hazardous, non-voyage inter-

vals. See generally, DiGiovanni v. Traylor Brothers, Co., 959

F.2d at 1121-23.

Thus, the outcome of the respondent’s status as a Jones

Act seaman would depend upon which test would be used to

review his employment related connection to the spud barge

in this case. In the First, Sixth and Ninth Circuits, this

employment related connection would be inadequate as a

matter of law to qualify as a Jones Act seaman. Recent trial

court decisions would also deny Jones Act status as a matter

12

of law for lack of a substantial connection, but these courts

are struggling to develop a cohesive test to express the

qualitative nature of this component of the Jones Act inquiry.

See Gipson v. Kajima Engineering and Construction, Inc., 972

F. Supp. 537, 542 (C.D. Cal. 1997Xconstruction worker lack-

ed substantial in nature connection to barge); Snowden v.

Woodington Corporation, 963 F. Supp 526, 529 (E.D. Va.

1997Xconstruction worker had sporadic connection to spud

barge); O’Hara v. Weeks Marine, Inc., 910 F. Supp. 257, 260

(E.D.N.Y 1996Xspud barge was not a vessel in navigation) ©

Nielson v. Weeks Marine, Inc., 910 F. Supp. 84, 86 (E.D.N.Y.

1996Xsame); Taylor v. Cooper River Constructors, 830 F. Supp

300 (D.S.C. 1993Xapplying DiGiovanni). Indeed, counsel for

the petitioner is also asserting the same arguments against

seaman status in a case on appeal from a Louisiana State

Court, LeBouef v. Dupre Brothers Construction Company, Inc.,

No. 96-CA-0074 (La.App. 1st Cir), where the issue frequent-

ly arises from the nature of local maritime activities.

Only the Fifth and Second Circuits continue to analyze

the issue of seaman status without focusing upon the substan-

tial connection component of the Jones Act inquiry. Indeed,

if the substantial connection component is recognized at all

in these Circuits, it is only in terms of the worker’s temporal

connection to the vessel, and not in respect to the qualitative

nature of that connection as expressly required by Latsis.

Allbritton, Seaman Status at 388 n. 110. It is therefore

respectfully requested that this Court recognize this conflict

and resolve it by granting this Petition for a Writ of Certiorari

so that a uniform analytical framework can be developed for

resolving the substantial connection component of the Jones

Act inquiry.

13

Finally, not only is the Fifth Circui:’s approach incor-

rect and in conflict with other Circuit Courts, but in light

of the present development of Jones Act jurisprudence and

the undisputed facts concerning the respondent’s employment

related connection to a vessel, this case presents this Court

with its most important opportunity to properly define the

substantial connection requirement for Jones Act seaman

status. It is unfortunately true that this Court has devoted

a considerable portion of its limited resources to the issue

recently, but so have many trial courts over the past four

decades. Yet, this Court is now on the threshold of emerg-

ing from “the labyrinth” of its prior jurisprudence on seaman

status. This case will provide the Court with an important

opportunity to resolve the central inquiry into seaman status

in a significant manner so as to eliminate a large portion

of any unnecessary confusion in identifying who is a Jones

Act seaman at the start of the work day.

It is the lack of a substantial-in-nature connection of

these land-based workers to a vessel that wil] allow this Court

to express more clearly this essential element of Jones Act

status in a more effective fashion than this Court has

previously been allowed by the issues and facts of its prior

decisions. The nature of the respondent’s employment related

connection to a vessel in this case, which was substantial in

duration, will provide an opportunity for this Court to draw

the necessary distinction between land-based workers and

the members of the crew of a vessel that will provide mean-

ingful guidance in most maritime activities where seaman

status should not even be at issue. Therefore this case ap-

pears at a particularly auspicious period in the development

of a more modern approach to seaman status, and with a

relatively clean record, thereby providing this Court with an

important opportunity to define the key elements of seaman

14

status under the Jones Act in terms of the employee’s

substantial-in-nature connection to the vessel.

II. This Case Presents an Important Question

of First Impression Concerning Whether the Failure

to Use Special Interrogatories Can Constitute an

Abuse of Discretion in Cases Involving Multiple

Claims for Liability

At trial, the respondent testified that he felt pain in

his back on three separate occasions while at work over a

two day period. These episodes of pain occurred while he was

removing timbers from a pontoon float, while bending over

to tie off a boat, and while dismantling a crane boom. Only

the timber and crane boom events were submitted to the jury

as theories of liability. Furthermore, only the timber inci-

dent was supported by medical testimony as a cause of the

respondent’s injuries.

Nonetheless, over the objection of the petitioner, the

court combined both incidents into a single jury interrogatory

for each issue of unseaworthiness, negligence, comparative

fault and causation. App. F. The jury found negligence and

causation, but did not find either unseaworthiness or con-

tributory negligence. The petitioner asserts that the failure

to submit special interrogatories concerning each incident

which was the basis for a claim for relief is so prejudicial that

it constitutes an abuse of discretion and reversible error in

and of itself. The prejudice arises because in post-trial mo-

tions and on appeal, the petitioner had challenged the suffi-

ciency of the evidence to support a finding of Jones Act

negligence based on either incident.

15

This is an issue of first impression, but it is of singular

importance in allowing for the effectiveness of post-trial and

appellate review of a jury verdict when a party challenges

the sufficiency of the evidence to support a find of liability.

Indeed, where the failure to use special interrogatories

frustrates a party’s ability to challenge the sufficiency of the

evidence supporting a judgment, the trial court has abused

its discretion and a new trial is warranted because the par-

ty has been denied the essence of a “fair trial”, which in-

cludes the ability to review the evidentiary basis of a jury’s

verdict. It is respectfully submitted that the recognition of

this standard is sufficiently important to warrant review by

this Court on a Petition for Writ of Certiorari.

This Cout has not yet had the opportunity to consider

the importance of Federal Rule of Civil Procedure 49 in

respect to multiple claims asserted against a single defen-

dant. There are also no appellate decisions that address the

issue. Yet, the issue is critically important because special

interrogatories provide the most valuable technique for deter-

mining the jury’s resolution of disputed fact issues and how

these facts are applied to the law. See generally, Skidmore

v. Baltimore & Ohio Railroad Co., 167 F.2d 54, 57-61 (2d Cir.

1948); Brodin, Accuracy, Efficiency and Accountability in the

Litigation Process-The Case for the Fact Verdict 59 U. Cin.

L. Rev. 15, 70-1 (1990).

This is particularly true in cases where multiple claims

are asserted against a single defendant. The defendant’s right

to a fair trial should include the right to effective legal review

of the jury’s verdict in cases where multiple grounds for

16

liability are asserted. Therefore, in order to protect this right,

this Court should recognize that the failure to submit special

interrogatories can constitute an abuse of discretion where

a defendant is denied a meaningful opportunity to review

the basis for the jury’s imposition of liability. Accordingly,

the petitioner would request that this Court grant the Peti-

tion for a Writ of Certiorari and recognize that the failure

to submit special interrogatories to the jury can constitute

an abuse of discretion.

III. A Writ of Certiorari is Necessary in Order

To Set Guidelines for Conducting a Post-Trial

Inquiry Into Whether a Jury Received

Extra-Judicial Information

In this case, the petitioner moved the Court in a post-

trial motion for a new trial to conduct an inquiry into the

possibility of improper communications between the jury and

a third person. After trial, it was determined that the third

party was a person who drove a juror back and forth to trial

each day during a commute that lasted for over an hour each

way. The third party remained in the courtroom throughout

the trial, including when the jury was excused for rulings

by the court. She also had lunch with the jury on at least

one occasion and had conversations with several fact

witnesses. During the course of jury deliberations, the

observer remained with the respondent and his wife. After

trial, the observer and the juror, with whom she was com-

muting to trial, were seen talking to the plaintiff and his wife.

In accordance with the time limits set by Federal Rule

of Civil Procedure 59, the petitioner filed a motion for a new

trial that raised these facts by affidavit and requested that

17

a hearing be held on the issue. The District Court refused

to conduct the hearing by ruling that there was no colorable

claim that extrinsic information was passed to the jury. By

applying this objective standard in conjunction with a local

rule that prevents contact with jurors without authority of

the Court, the petitioner was denied a hearing on the issue

of the possibility of jury misconduct.

There is very little guidance from the Circuit Courts

as to the necessary burden of proof required for a post-verdict

inquiry into the proprieties of jury deiberations. However,

the issue presented in this case is significant. As with many

courts, the United States District Court for the Eastern

District of Louisiana has a local rule absolutely prohibiting

post-verdict contact between the jurors and a party, unless

expressly allowed to do so by the trial court upon a showing

of good cause. See Crump, Jury Misconduct, Jury Interviews

and the Federal Rules of Evidence: Is the Broad Exclusionary

Principle of Rule 606(b) Justified? 66 N.C.L. Rev. 509, 526-27

(1988); Comment, Limitations on Attorney Postverdict Con-

tact with Jurors: Protecting the Criminal Jury at the Expense

of the Defendant, 94 Col. L. Rev. 1950, 1956 n. 41

(1994Xmajority rule among District Courts). It has been

recognized that the burden of coming forward with any

evidence to support a post-trial hearing on jury misconduct

is, as a practical matter, insurmountable where a party is

not allowed to contact jurors without first making an eviden-

tiary showing. Crump, Jury Misconduct at 528, Diehm, Im-

peachment of Jury Verdicts: Tanner v. United States and

Beyond, 65 St. John’s L. Rev. 389, 428 (1991).

There is an inherent flaw to these local rules in that

a litigant who is prohibited from contacting a juror is

18

necessarily precluded from presenting evidence that an

unauthorized communication occurred. Indeed, the American

Bar Association has rejected such a broad prohibition against

attorneys contacting jurors. MODEL CODE OF PROFES-

SIONAL RESPONSIBILITY EC 7-29; DR 7-108(D); ABA

Comm. on Professional Ethics and Grievances, Formal Op.

319 (1968). Thus, a party seeking to exercise its right to a

fair trial will find itself confronted by a local rule that

prevents it from conducting any effective inquiry into the

possibility of jury misconduct without first making an eviden-

tiary showing.

The question in this case is therefore necessarily framed

by both Federal Rule of Evidence 606(b) and, more impor-

tantly, by the local rule which prohibits contact with the

jurors consistent with the practice in a majority of the Federal

District Courts. The petitioner submits that where such a

local rule is in effect, the District Court must take a more

reasonable and active role in conducting a post-verdict in-

quiry into the possibility that the jury considered extrinsic

information in the course of its deliberations. It is respect-

fully submitted that the local rule imposed by the Eastern

District of Louisiana requires a lesser showing of proof in

order to conduct a post-verdict inquiry so that the rights of

civil litigants to a fair jury trial are protected.

Accordingly, upon a proper motion, the trial court

should review the evidence brought forward within the con-

text of the limitation imposed upon the party seeking to

challenge the verdict in order to determine if a hearing is

required. Simply viewing the evidence against an objective

standard would preclude any inquiry in all but the most ob-

vious cases of juror misconduct where there is clear and

19

convincing evidence that can be obtained without contacting

any jurors. The litigants to civil actions have Due Process

Rights under the Fifth Amendment to the United States Con-

stitution that cannot be frustrated by procedural obstacles

buttressed by insurmountable evidentiary standards. The fact

that the due process denial has been rendered by the court

itself, does not cleanse it from what it is. In addition, the at-

torneys have ethical obligations to insure that the jury con-

ducted itself in a fair and impartial manner.

Therefore, it is respectfully requested that this Court

grant the Petition for a Writ of Certiorari so that appropriate

standards can be developed for the trial courts to conduct a

post-verdict inquiry that adequately protects the rights of

civil litigants. Civil litigants are entitled to an impartial jury

free from extrinsic influences that may subvert the fact fin-

ding process. Abell v. Potomoc Insurance Co., 858 F.2d, 1004,

1145 n.48 (5th Cir. 1988); Hailey v. Blue Ridge Transfer Co.,

802 F.2d 1532, 1535 (4th Cir. 1986). Protection of this right

is an integral part of the jury system, worthy, in and of itself,

of review by this Court.

Respectfully submitted,

FRED E. SALLEY

Counsel of Record

LEE M. PEACOCKE

SALLEY & ASSOCIATES

3510 N. Causeway Boulevard,

Suite 601

Metairie, LA 70002

Telephone: (504) 846-4260

Counsel for Petitioner Plaisance

Dragline & Dredging Company, Inc. °

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 96-30633

JAY M. VERDIN

Plaintiff-Appellee,

VERSUS

PLAISANCE DRAGLINE & DREDGING COMPANY, INC.

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

(93-CV-3794)

Before DAVIS, JONES, and DENNIS, Circuit Judges,

PER CURIAM:*!

AFFIRMED. See Local Rule 47.6

1 Pursuant to 5TH CIR.R. 47.5, the Court has determined that this opi-

nion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR.R. 47.5.4.

A-2

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAY VERDIN CIVIL ACTION

VERSUS NO. 93-3794

PLAISANCE DRAGLINE & SECTION “L”

DREDGING CO.

Before the Court are two motions filed by the defendant:

1) Motion for Judgment as a Matter of Law, on the grounds

that plaintiff failed to prove that he was a seaman; and 2)

Motion for New Trial and/or Remittitur, on grounds that the

jury’s award was so excessive that it could have resulted on-

ly from passion or prejudice, and that the jury might have

received extrinsic information. IT IS ORDERED that both

motions are DENIED.

Considering the Motion for Judgment as a Matter of

Law, viewing the evidence in the light most favorable to the

jury verdict, the Court is unable to conclude that there was

“no legally sufficient evidentiary basis for a reasonabale jury

to find for” the plaintiff on the seaman status issue. See,

Fed.R.Civ.P. 5Q(a); Conkling v. Turner, 18 F.3d 1285 (5th Cir.

1994).

Considering the Motion for New Trial and/or Remit-

titur, the Court is unable to conclude that a reasonable per-

son could not have found plaintiff's damages to be that which

the jury awarded. See Jackson v. Taylor, 912 F.2d 795, 797

LE

A-3

(5th Cir. 1990). Nor is there any credible evidence suggesting

that the jury received extrinsic information.

Date of Entry: May 21, 1996 s/ Eldon J. Fellon

A4

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAY VERDIN CIVIL ACTION

VERSUS NO. 93-3794

PLAISANCE DRAGLINE & SECTION “L”

DREDGING COMPANY, INC.

JUDGMENT

This matter came on before the Court for trial by jury

on previous days. Now therefore, considering the answers of

the jury to the interrogatories propounded, the prior dismissal

of the intervention in this matter, and the direction of the

Court as to the entry of judgment, accordingly:

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of plaintiff, Jay M. Verdin, and

against defendant, Plaisance Dragline & Dredging Company,

Inc., in the amount of Seven Hundred Forty-One Thousand,

Five Hundred and No/100 ($741,500.00) Dollars, plus legal

interest from the date of judgment, and costs.

IT IS FURTHER, ORDERED, ADJUDGED AND

DECREED that the intervention of Leonard A. Radlauer, a

Professional Law Corporation, is dismissed with prejudice.

A-5

New Orleans, Louisiana, this 7th day of March, 1996.

s/ Eldon E. Fallon

UNITED STATES DISTRICT JUDGE

A-6

APPENDIX D

46 U.S.C. §688

Recovery for Injury to or Death of Seaman

(a) Application of railway employee statutes; jurisdiction.

Any seaman who shall suffer personal injury in the

course of his employment may, at his election, maintain an

action for damages at law, with the right of trial by jury, and

in such action all statutes of the United States modifying or

extending the common-law right or remedy in cases of per-

sonal injury to railway employees shall apply; and in case

of the death of any seaman as a result of any such personal

injury the personal representative of such seaman may main-

tain an action for damage at law with the right of trial by

jury, and in such action all statutes of the United States con-

ferring or regulating the right of action 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.

Federal Rule of Civil Procedure Rule 49

Special Verdicts and Interrogatories

(a) Special Verdicts. The court may require a jury to

return only a special verdict in the form of a special written

finding upon each issue of fact. In that event the court may

submit to the jury written questions susceptible of categorical

A-7

or other brief answer or may submit written forms of the

several special findings which might properly be made under

the pleadings and evidence; or it may use such other method

of submitting the issues and requiring the written findings

thereon as it deams most appropriate. The court shall give

to the jury such explanation and instruction concerning the

matter thus submitted as may be necessary to enable the jury

to make its findings upon each issue. If in so doing the court

omits any issue of fact raised by the pleadings or by the

evidence, each party waives the right to a trial by jury of

the issue so omitted unless before the jury retires the party

demands its submission to the jury. As to an issue omitted

without such demand the court may make a finding; or, if

it fails to do so, it shall be deemed to have made a finding

in accord with the judgment on the special verdict.

(b) General Verdict Accompanied by Answer to In-

terrogatories. The Court may submit to the jury, together

with appropriate forms for a general verdict, written inter-

rogatories upon one or more issues of fact the decision of

which is necessary to a verdict. The court shall give such ex-

planation or instruction as may be necessary to enable the

jury both to make answers to the interrogatories and to

render a general verdict, and the court shall direct the jury

both to make written answers, and to render a general ver-

dict. When the general verdict and the answers are har-

monious, the appropriate judgment upon the verdict and

answers shall be entered pursuant to Rule 58. When the

answers are consistent with each other but one or more is

inconsistent with the general verdict, judgment may be

entered pursuant to Rule 58 in accordance with the answers,

notwithstanding the general verdict, or the court may return

the jury for further consideration of its answers and verdict

A-8

or may order a new trial. When the answers are inconsis-

tent with the general verdict, judgment shall not be entered,

but the court shall return the jury for further consideration

of its answers and verdict or shall order a new trial.

Louisiana Rules of Court

Uniform District Court Rules

13.05E Interviewing Jurors.

A. Nojuror has any obligation to speak to any per-

son about any case and may refuse all interviews or

comments;

B. Noperson may make repeated requests for inter-

views or questions after a juror has expressed his or her desire

not to be interviewed;

C. Under no circumstances except by leave of court

granted upon good cause shown shall any attorney, party to

an action or other person examine or interview any juror.

No juror who may consent to be interviewed shall disclose

any information with respect to the following:

1. The specific vote of any juror other than the juror

being interviewed;

2. The deliberation of the jury; or

3. For the purposes of obtaining evidence of im-

proprieties in the jury’s deliberations.

| AQ

APPENDIX E

DEFENDANT’S REQUESTED JURY CHARGE NO. 48

The total circumstances of an individual’s employment

must be weighed to determine whether he had a sufficient

relation to the navigation of vessels and the perils attendant

thereon.

Thus, a worker would be a seaman

1. when a substantial part of his duties are perform-

ed on vessels, and

2. his work significantly exposes him to dangers aris-

ing from the movement of vessels on navigable

waters.

Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2190 (1995).

Wallace v. Oceaneering International, 727 F.2d 427, 432-36

(5th Cir. 1984).

David W. Robertson, A New Approach to Determining

Seaman Status, 64 Tex.L.Review 79,120

Given

Not Given.

A-10

DEFENDANT’S REQUESTED JURY CHARGE NO. 49

A seaman under the Jones Act is supposed to be a sea-

based maritime employee.

McDermott International Inc. v. Wilander, 498 U.S. 337, 348

(1991).

Given.

Not Given.

DEFENDANT’S REQUESTED JURY CHARGE NO. 51

The Jones Act requires an employment related connec-

tion to a vessel in navigation. The Jones Act remedies are

limited to the members of the crew of a vessel plying in

navigable waters. It an employee’s regular duties require him

to divide his time between vessel and land, his status as a

crew member is determined in the context of his entire

employment. A seaman must have a connection to a vessel

in navigation that is substantial in terms of both its dura-

tion and its nature. The Jones Act remedy is reserved for sea-

based maritime employees whose work regularly exposes

them to the special hazards and disadvantages to which they

who go down to sea in ships are subjected. The total cir-

cumstances of an individual’s employment must be weigh-

ed to determine whether he had a sufficient relation to the

navigation of vessels and the perils attendant thereto. The

duration of a worker’s activities, taken together, determine

whether a maritime employee is a seaman because the

A-11

ultimate inquiry is whether the worker in question is a

member of the vessel’s crew or simply a land based employee

who happens to be working on the vessel at a given time.

Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2190 (1995)

Given.

Not Given.

DEFENDANT’S REQUESTED JURY CHARGE NO. 52

Under the Jones Act and the General Maritime Law,

seamen do not include land-based workers. The Jones Act

distinguishes between land-based and sea-based maritime

workers. The latter, who owe their allegiance to a vessel and

not solely to a land-based employer, are seamen. The Jones

act was intended to protect sea-based maritime workers, who

owe their allegiance to a vessel, and not land-based

employees, who do not.

Chandris, Inc. v. Latsis, 115 St.Ct. 2172, 2185 (1995)

Given__

Not Given__

A-12

DEFENDANT’S REQUESTED JURY CHARGE NO. 53

Seamen incur special hazards on the sea, not at

dockside. Jones Act seaman status is not available to workers

on vessels only during non-hazardous, non-voyage intervals.

A worker becomes a seaman not by reason of the physical

characteristics of the structure to which he is attached, but

because its navigation exposes him to seaman’s hazards.

Workers assigned to barges for its operation while tied to the

shore are not seamen.

DiGiovanni v. Traylor Brothers, Inc., 957 F.2d 1119, 1121-24

(1st Cir. 1992 ((en banc).

Given.

Not Given

A-13

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAY VERDIN CIVIL ACTION

VERSUS NO. 93-3794

PLAISANCE DRAGLINE & SECTION “L”

DREDGING CO., INC.

JURY INTERROGATORIES

Please answer the following questions:

1. Was the plaintiff a “seaman” during his employment

with Plaisance Dragline & Dredging Company, Inc.?

Yes X No

If your answer to Question 1 is “Yes,” then answer

Question 2. If your answer to Question 1 is “No, skip the

remaining questions, date and sign this form, and return to

the courtroom.

2. Was the defendant negligent under the Jones Act and

was such negligence a cause of injury to the plaintiff?

Yes X No

A-14

Proceed to Question 3.

3. Was the US GRANT and/or S/B REBEL I unseawor-

thy and was such unseaworthiness a proximate cause

of injury to the plaintiff?

Yes No X

If your answer to Qestion 3 is “Yes” or your answer

to Question 2 is “Yes,” then answer Question 4. If both your

answer to Question 3 and your answer to Question 2 is “No,”

skip Questions 4, 5, and 6 and go on to Question 7.

4. Was the plaintiff negligent and was such negligence

a proximate cause of his own injuries?

Yes No X

If your answer to Question 4 is “Yes” then answer Ques-

tion 5. If your answer to Question 4 is ““No,” then skip Ques-

tion 5 and go on to Question 6.

5. What percentange of plaintiff's injuries were caused

by plaintiff's own negligence?

Proceed to Question 6.

6. What amount, if any, do you find will fairly and ade-

quately compensate the plaintiff for his injuries? (Do

not make any deductions for plaintiffs negligence, if

any. The Court will make any calculations

necessaary.)

in nai al

Sa Sa ee ee ee

A-15

1. Past medical expenses $ 13,500.00

2. Future medical expenses $ 40,000.00

3. Past Loss of wages $ 62,500.00

4. Future loss of wages $325,000.00

5. Past and future pain and

suffering and loss of enjoy-

ment of life $300,000.00

Proceed to Question 7

7 Has the plaintiff reached a point of maximum medical

cure?

Yes No X

If your answer to Question 7 is “Yes,” then answer

Question 8. If your answer to Question 7 is “No,” skip Ques-

tion 8 and go to Question 9

8. On what date did the plaintiff reach maximum

medical cure?

S . , Selcenae inne

If your answer to both Questions 2 and 3 was “‘ No”

OR if you answered Question 6, but did not enter an amount

for past medical expenses, then answer Question 9. Other

wise, skip Question 9 and go to Question 10.

A-16

9. What amount, if any, would fairly and adequately

compensate the plaintiff for cure?

$

10. What amount, if any, would fairly and adequately

compensation the plaintiff for maintenance?

$

Please date and sign the verdict form and return to the

courtroom.

New Orleans, Louisiana, this lst day of March, 1996.

/s George A. Blount, Jr.

pc ARERR LR EER LE AN ED OES CT Os ET KT TNEA OSE R ST A SEUSS we

A-17

APPENDIX G

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAY VERDIN * Docket No. 93-CV-3794 -L

*

VERSUS * New Orleans, Louisiana

x

PLAISANCE DRAGLINE * Friday, March 1, 1996

& DREDGING COMPANY, *

INC. *

VOLUME FIVE

TRANSCRIPT OF THE TRIAL BEFORE

THE HONORABLE ELDON E. FALLON,

UNITED STATES DISTRICT JUDGE PRESIDING

AND A JURY

Summation of Joshua A. Tilton; Attorney for Plaintiff; Jay

Verdin

Page 4, Line 9 through Page 6, line 23:

To explore the first question of whether or not, or ex-

ample, we know US GRANT is a vessel. And the REBEL

ONE is a vessel. Because it’s documented as one thing by

the U. S. Coast Guard. The photographs, you’ll see in review,

it’s got a raked bow. It’s got everything it needs to navigate

on the water. So there is no question that the US GRANT

and the REBEL ONE were vessels.

A-18

Now you can’t look there. They are vessels, they have

to do something. So, you have to say, what was the mission,

what the purpose, the function of the US GRANT and the

REBEL ONE. What did they do. They were designed to carry

a 110 ton dragline to job sites all over in the little area we

have been talking about, lower Louisiana, to do all kinds of

different jobs. So, the defense has said that, well when you

get to a job site, the REBEL ONE would spud down and then

it would be no longer a vessel. That vessel was still floating

at all times. No one ever testified it was taken out of water

or anything like that. Occasionally, it was testified the crane

would be moved off the REBEL ONE onto the bank to do some

work. That did not cease making this stop, this REBEL ONE

from being a vessel. It didn’t start to become a work plat-

form. What Jay Verdin did was to work in performing duties

that directly contributed to the function and the mission of

the US GRANT, the REBEL ONE, and the dragline that was

part of the equipment that was used to do work. We heard

evidence that I think his cousin Nelson Verdin said more

work was done from the dragline while it was on the barge

REBEL ONE than off. Roy Kiger said that more work was

done by the dragline on the barge when it was off, than when

it was on. Jay Verdin testified just like them. There was

testimony they were the crew. They had been the crew for

a year of the US GRANT and the REBEL ONE that carried

the dragline. That is a vessel crew doing work all the various

facets of the work that are necessary to complete the func-

tion of all of the equipment, including the barges, the boat

and the dragline. You know, a rose by any other name is still

going to be a rose. And if you call Jay Verdin a roustabout

or whatever you call him, doesn’t make a difference. He would

be a seaman under these circumstances, doing the work that

contributed to the function of the vessels.

A-19

Now you must understand that it’s my position that

it doesn’t make any difference if he had to get off onto the

bank occasionally to work, do the work of the vessels. Because

he is still contributing to the mission and the function of both

the US GRANT and the REBEL ONE because their mission

was in conjunction with the dragline, to take it to do work.

If he is standing on the bank, it doesn’t mean he is then not

a seaman. He is still attached and still a member of the crew

that is doing the work to complete the task of these vessels

were given. And he did it for a long period of time. As a mat-

ter of fact that is where the 84.52 percent comes in. Part of

the time that was actually driving the US GRANT, 14.2 per-

cent was captain of the USS GRANT, 70 percent was work-

ing aboard the REBEL ONE in conjunction with its mission

to do the work that the dragline was supposed to do.

Now, the defense is going to say that wasn’t my client,

is not in the marine business. He is all land. But that begs

the question. Because the vessel, the vessels were required

to be available to take this dragline to where they were and

they were, both vessels were an integral part of what this

dragline part of what this dragline did. Further, every one

of them testified they tried to put as many tools as they could

on the land. When they go on land usually they would be

back and forth, a gangplank from the barge to the shore. They

could run back and forth to get the air compressor or the cut-

ting tools or whatever they needed to do the job.

A-20

APPENDIX H

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alee

A-21

A-22

A-23

a ee ee

aw ee

2 —