case 6:15-cv-01803-cbw document 131 filed 01/30/18 page 1 of … · 2018. 2. 23. · calderera v....

Case 6:15-cv-01803-CBW Document 131 Filed 01/30/18 Page 1 of 3 PageID #: 1599

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISIONORVEL P. HALE * CIVIL ACTION NO. 6:15cv01803

*VERSUS * JUDGE REBECCA F. DOHERTY

*WOOD GROUP PSN, INC., * MAGISTRATE JUDGE BORDELON MARINE L.L.C., * CAROL B. WHITEHURSTENI US OPERATING CO., INC. ******************************************************************

MEMORANDUM IN SUPPORT OF MOTION FOR NEW TRIAL ON DAMAGES,OR ALTERNATIVELY, FOR REMITTITUR AND FOR A

STAY ON THE EXECUTION OF THE JUDGMENT PENDING THE DISPOSITION OF THE PRESENT MOTION PURSUANT TO F.R.C.P. 62(b)

Defendants, ENI US Operating Co., Inc., Bordelon Marine, LLC

and Wood Group PSN, Inc., submit this memorandum in support of

its Motion for New Trial on Damages, or Alternatively, for

Remittitur and for a Stay on the execution of the Judgment

pending the disposition of the present motion pursuant to

F.R.C.P. 62(b).

1. The Court has Authority to Grant a New Trial on Damages orto Grant a RemittiturWhere a flaw in the jury verdict relates to damages, the

district court has discretion to overturn an excessive verdict

without qualification and order a new trial, or to condition the

denial of a new trial on the plaintiff’s acceptance of a

reduction in the amount of the award, or “remittitur”. Gasperini

v. Center for Humanities, Inc., 116 S.Ct. 2211, 2222, 518 R.U.

415, 433, 135 L.Ed.2d 659 (1996). The Fifth Circuit has held

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that an excessive award warrants intervention when such awards

are so large as to “shock the judicial conscience”, “so gross or

inordinately large as to be contrary to right reason”, so

exaggerated as to indicate “bias, passion, prejudice, corruption

or improper motive” or “clearly exceeding that amount that any

reasonable man would feel the claimant is entitled to”.

Calderera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.

1983).

2. The General Damage Award was Excessive, Which Justifies aNew Trial on Damages or, Alternatively, a RemittiturThe jury awarded $2,250,000 in general damages to Orvel P.

Hale, allocated as follows: past physical pain and suffering

($100,000); future pain and suffering $1,500,000); past mental

pain and suffering ($75,000); future mental pain and suffering

($225,000); past physical disability, impairment and

inconvenience ($25,000); future physical disability, impairment

and inconvenience ($75,000); past loss of enjoyment of life

($25,000); future loss of enjoyment of life ($200,000). By any

measure, the award was excessive.

Orvel P. Hale’s medical condition, recovery and the need for

future medical treatment was contested. Dr. Erich Wolf testified

that plaintiff needed and he performed cervical and lumbar

surgeries, that the surgeries were successful and that plaintiff

had reached MMI as respects plaintiff’s lumbar spine surgery on

11 January 2016, and cervical spine surgery on 13 April 2017.


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Hale’s lumbar and cervical condition was noted as largely

asymptomatic on 3 August 2017. Dr. Wolf testified that Orvel P.

Hale would be restricted to light duty work. There was no

testimony from a medical doctor that Orvel P. Hale suffered from

depression or any other mental disorder requiring any treatment,

psychological counseling, psychotherapy, administration of

medications and/or others. There was no evidence to support any

award for future medical expenses and this Honorable Court

granted a Motion for Judgment as a Matter of Law on the issue of

future medical expenses. Plaintiff’s counsel, however, argued

that the draconian procedures identified by Dr. Wolf were what

Orvel P. Hale would be required to endure. Plaintiff argued that

Mr. Hale suffered from chronic pain syndrome and would suffer for

the rest of his life. On orders by the Court, Defendants were

precluded from offering any evidence of plaintiff’s prescription

drug use, plaintiff’s pre-existing condition (medicals showing

prior back complaints, treatment and longstanding prescription

medications) and even plaintiff’s behavior on the morning of and

prior to the incident. Defendants’ were specifically precluded

from introducing Dr. Steven Vidrine’s medical records which

establish that Orvel P. Hale had back pain, shoulder pain and was

diagnosed to have chronic pain syndrome for at least five years

before the incident. Even accepting plaintiff’s evidence, the

jury’s verdict on general damages was not reasonable. The Court


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should grant a new trial on damages, or, in the alternative,

order a remittitur of the jury’s award.

Whether an award represents an excessive verdict “cannot be

determined solely by comparison to awards upheld or reversed in

other cases”. Williams v. Chevron U.S.A., Inc., 875 F.2d 501

(5th Cir. 1989) However, the Court will “examine past awards for

rough guidance in assessing the award at hand”. Williams, 875

F.2d at 506, citing In Re Air Crash Disaster Near New Orleans,

767 F.2d 1151, 1156 (5th Cir. 1985). The Fifth Circuit has noted

that it is appropriate for a reviewing court to “[draw] a measure

of general guidance from, though not [be] rigidly circumscribed

by, cases involving somewhat comparable injuries.” Simeon v. T.

Smith & Son, Inc., 852 F.2d 1421, 1427 (5th Cir. 1988).

District courts within the Fifth Circuit have addressed the

appropriate range of general damages to plaintiffs who have

sustained similar injuries. Defendants’ concede no two cases are

identical. However, the injuries sustained by Orvel P. Hale are

similar in nature to the following cases which provide an

appropriate range of general damages in this case.

In Theodile v. Delmar Systems, Inc., 2007 WL 2491808 (W.D.

La 2007), the plaintiff suffered a back injury and had a surgery

recommendation. Plaintiff suffered from urinary incontinence,

depression and a brain injury. The jury awarded general damages

in the amount of $1,250,000. The Court ordered that the


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plaintiff may either opt for a new trial limited to the issue of

damages or accept a remittitur of $650,000 resulting in an award

of $600,000 for pain and suffering and mental anguish.

In Cheramie v. Blake Workover & Drilling Co., 1996 WL 409223

(E.D. La), the plaintiff suffered from a back injury with

recommendations for future surgery, urinary incontinence and

depression requiring psychological counseling resulting from a

work related injury. The jury found the defendant solely at

fault for plaintiff’s accident and related injuries and awarded

$775,000 in general damages. Judge Clement noted that awards for

back injuries in Louisiana state and federal courts have varied

greatly. After closely reviewing the jurisprudence, the Court

determined that the lower range for general damage awards for

similar injuries was in the $75,000 to $150,000 range, with

$400,000 to $450,000 being on the high end. Noting that the

plaintiff had not had surgery during the two years since the

accident, the Court stated that it was not apparent whether he

would have a good result from surgery or whether he would suffer

lifelong pain. The Court also recognized the evidence of

plaintiff’s depression and emotional suffering. The Court

concluded that any general damage award greater than

$300,000, would be excessive and offered the plaintiff a

remittitur in that amount.


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In Averett v. Diamond Offshore Drilling Services, Inc., 980

F.Supp. 855 (E.D. la. 1997), the plaintiff slipped and fell

eleven feet to the vessel deck, suffering a ruptured disc,

depression and experienced sexual dysfunction. After a period of

conservative treatment, the plaintiff underwent a lumbar

discectomy and fusion, and was required to wear a back brace full

time for at least six months. The judge awarded $175,000 in

general damages.

In Nettles v. Ensco Marine Co., 980 F.Supp. 848 (E.D. La.

1997), the plaintiff injured his back when the platform he was on

was struck by an offshore supply vessel causing him to fall in

the shower. The plaintiff sustained disc herniation at L5-S1,

and underwent a discectomy. The court noted that the plaintiff

had a prior disc herniation which had healed completely allowing

him to return to work without any problems prior to the accident

at issue. The court also noted that the injury aggravated

plaintiff’s previous chronic depression, that plaintiff was in

considerable pain and had significant limitations at the time of

trial, and that plaintiff would sustain mental and physical pain

“in all likelihood the rest of his life”. The court awarded

$150,000 in total general damages.

In Broussard v. Stolt Offshore, Inc., 2007 WL 101041 (E.D.

La.), the plaintiff, a Jones Act seaman, injured his back while

moving a 79 pound fuel transfer hose. The plaintiff underwent a


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three level lumbar fusion, and a second surgery to re-graft the

fusion was likely. The Court also noted that the plaintiff was

unable to enjoy a normal sex life with his wife. At trial, the

plaintiff had not reached maximum medical improvement, was

expected to require lifelong pain management, and was described

by the Court as “severely disabled”. After considering the

evidence and awards in similar cases, the Trial Court awarded

$400,000 in general damages.

In Williams v. Chevron U.S.A., Inc., 875 F.2d 501 (5th Cir.

1989), the plaintiff suffered two herniated discs in his lower

neck after slipping and falling on a platform. Anterior Cervical

Fusion surgery was recommended, but not performed prior to trial.

After reviewing Louisiana federal and state jurisprudence for

similar awards, the Fifth Circuit found that the jury’s general

damages award in the amount of $400,000 was excessive, offering

the plaintiff a remittitur of $200,000 as the maximum appropriate

award.

See also Jauch v. Nautical Services, Inc., 470 F.2d 207 (5th

Cir. 2006) (judge awarded $250,000 to seaman who underwent lumbar

disc fusion surgery after injuring his back while helping move a

johnboat); Sanford v. Kostmayer Constr. Co., 891 F.Supp. 1201

(E.D. La. 1995) (upholding jury’s general damages award of

$350,000 to seaman who underwent an anterior cervical fusion

surgery after sustaining injuries as a result of an accident


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while unloading equipment from a barge; plaintiff’s anatomical

disability rating was 15% to 20% as a whole); Marcel v. Placid

Oil Co., 11 F.3d 563, 571, n. 14 (5th Cir. 1994) (upholding jury

award of $67,500 in general damages to plaintiff who underwent

laminectomy and discectomy after a slip and fall in oil puddle on

platform); Cooper v. Offshore Express, Inc., 717 F.Supp. 1180

(W.D. La. 1989) (award of $150,000 in general damages for back

injury sustained aboard a platform that was struck by a vessel

where plaintiff underwent a foraminatory, laminectomy and

discectomy for a herniated disc at L4-5).

Two Fifth Circuit decisions demonstrate clearly the

excessiveness of the $2,250,000 general damage award to Mr. Hale

in this case. In Johnson v. Offshore Express, Inc. 845 F.2d 1347

(5th Cir. 1988), plaintiff underwent two back surgeries, was

confined to crutches for the remainder of her life, and suffered

from arachnoiditis, spina bifida and a displaced hip. The

general damages award was $555,000. In. Hernandez v. M/V Rajaan,

841 F.2d 582 (5th Cir. 1988), plaintiff was paralyzed from the

waist down, suffered “phantom pains” in his legs, underwent

several painful surgical procedures, and would require more

surgery in the future. The general damages award was $1,000,000.

A verdict is excessive if it is “contrary to right reason”

or “entirely disproportionate to the injury sustained”.

Caldarera, 705 F.2d at 784. While pain and suffering is not


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easily susceptible to monetary quantification, and the jury has

broad leeway, “the sky is simply not the limit” for jury

verdicts. Simeon, 852 F.2d at 784. When “[the] court is left

with the perception that the verdict is clearly excessive,

deference must be abandoned”. Eiland v. Westinghouse Elec.

Corp., 58 F.3d 176, 183 (5th Cir. 1995).

The jury’s general damage award to Mr. Hale was clearly

excessive and a new trial should be granted, or the verdict

should be remitted to a reasonable amount.

3. Request for a Stay on the Execution of the JudgmentPending the Disposition of the Present Motion Pursuant toF.R.C.P. 62(b)F.R.C.P. 62(b) provides in sub part:

“(a) Automatic Stay; Exceptions forInjunctions, Receiverships, and PatentAccountings. Except as stated in this rule,no execution may issue on a judgment, nor mayproceedings be taken to enforce it, until 14days have passed after its entry. ...

(b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party’ssecurity, the court may stay the execution ofa judgment–-or any proceedings to enforceit–-pending disposition of any of thefollowing motions: ...

(3) under Rule 59, for a new trial or to alter or amend a judgment; ...”.

Defendants respectfully request that execution of judgment

be Stayed until the present motion is ruled on by this Honorable

Court.


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CONCLUSIONThe jury verdict was flawed. It is within the power of this

Honorable Court to correct the errors. Defendants’ respectfully

submit, this Honorable Court should grant a new trial on damages

or order remittitur of the general damages award and a stay on

the execution of the Judgment pending this disposition of the

present motion pursuant to F.R.C.P. 62(b).

Respectfully submitted,

KRAFT LEGÉ LLC

BY: /S/Ralph E. Kraft Ralph E. Kraft, LBN 7918 [email protected] Bryan E. Legé, LBN 26378 600 Jefferson Street, Suite 410 Lafayette, LA 70501 337.706.1818 Phone 337.706.1828 Fax

Attorneys for ENI US Operating Co.,Inc., Bordelon Marine, LLC and WoodGroup PSN, Inc.


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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION ORVEL P. HALE : CIVIL ACTION NO.: 6:15-CV-01803 VS. : MAGISTRATE JUDGE WHITEHURST WOOD GROUP PSN, INC., : BY CONSENT OF THE PARTIES BORDELON MARINE L.L.C., ENI US OPERATING CO., INC.

PRETRIAL ORDER

Trial Date: January 22, 2018 Pretrial Conference Date: December 15, 2017 at 2:00 p.m. Type of Trial: Jury Estimated Length of Trial: Estimated length of trial is five to six court days. Trial Attorney Attending: For Complainant, Orvel P. Hale

Steven W. Hale, LA Bar No.: 6425 W. Taylor Hale, LA Bar No.: 31762 Steven W. Hale & Associates, Inc. A Professional Law Corporation 1735 Ryan Street Lake Charles, Louisiana 70601 Telephone: (337) 433-0612 Facsimile: (337) 433-0613 [email protected] [email protected] For Defendants, Wood Group, PSN, Inc., Bordelon Marine, LLC, and ENI US Operating Co., Inc.

Ralph E. Kraft, LBN 7918 Bryan E. Lege, LBN 26378

600 Jefferson Street, Suite 410 Lafayette, Louisiana 70501

Telephone: (337) 706-1818 Facsimile: (337) 706-1828 [email protected]


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1. Jurisdictional Basis: Complainant has pled under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et.

seq., Section 905 (b) of the Longshore and Harbor Workers Compensation Act (LHWCA), 33

U.S.C. § 901 et. seq., the General Maritime Law, 28 U.S.C. 1333, and the laws of the State of

Louisiana. Jurisdiction is not contested.

1(A). Brief Description of Accident:

Orvel P. Hale, Complainant

On or about June 3, 2014, Complainant, Orvel P. Hale, was employed by Oceaneering

International Inc., as a Technician Level One, assigned to perform erosion/corrosion survey

services for ENI US Operating Co., Inc. at their Vermilion 313-C unmanned fixed offshore

platform located in the Gulf of Mexico. ENI US Operating Co. Inc., was the leaseholder and

operator of the Vermilion 313-C, 313-D and 313-B fixed offshore platforms.

Orvel P. Hale was injured during a personnel basket transfer lift from the stern deck of

the M/V WES BORDELON, an offshore supply vessel, owned and operated by the defendant,

Bordelon Marine, LLC, when Billy Nolan, an employed mechanic for the defendant, Wood

Group, PSN, Inc., was operating the ENI pedestal crane on the Vermilion 313-C fixed platform

and suddenly, jerked the personnel basket from the vessel’s stern deck hard and fast when the

crane’s fast line was not properly centered over the personnel basket causing the personnel

basket to swing out of control striking a piece of chained down equipment near the passenger

loading zone on the vessel and knocking Orvel P. Hale’s feet out from under him and causing

Orvel P. Hale to lose his firm grip on the personnel basket netting resulting in Orvel P. Hale

falling a distance estimated to be between eight (8) and ten (10) feet to the stern vessel deck

below causing personal injuries to Orvel P. Hale.


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2. Claims and Responses of Orvel P. Hale, Complainant:

Complainant, Orvel P. Hale, has asserted negligence claims against the defendants, Wood

Group PSN, Inc., (“Wood Group”), Bordelon Marine, LLC, (“Bordelon”), and ENI US

Operating Company, Inc., (“ENI”), for general, special, and punitive damages as a result of the

alleged injuries he suffered during a failed personnel basket transfer lift accident from the stern

of the M/V WES BORDELON to the ENI Vermilion 313-C unmanned fixed offshore platform

located in the Gulf of Mexico on June 3, 2014.

Wood Group PSN, Inc.

a. The Law and Any Contractual Provision Supporting the Claim: General

Maritime Law; The Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et

seq.; 33 CFR 250.108, 33 CFR 250.198, the laws of the State of Louisiana,

and the contractual provisions agreed to between Wood Group PSN, Inc. and

ENI US Operating Company, Inc.

a. Failing to exercise due care under the circumstances;

b. Failing to provide Orvel P. Hale with a safe means of ingress and egress from the M/V WES BORDELON;

c. Failing to conduct and/or adhere to the Job Safety Analysis before

conducting the personnel basket transfer from the vessel to the platform and failing to communicate with the vessel’s Captain and deckhand prior to commencing the personnel basket lift;

d. Negligent lifting of the personnel basket when it was not safe to do so, and lifting the personnel basket at a time when the pedestal

crane’s headache ball and fast line were not centered directly over the personnel basket;

e. Failing to provide a safe method to transfer petitioner to and from the platform by appropriately timing the lift of the personnel basket

from the vessel’s deck while ensuring that the crane was positioned directly above the personnel basket, such that the crane wire was vertical;


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f. Failing to do what should have been done under the prevailing

circumstances, including but not limited to, raising the personnel basket in such a manner to minimize swinging;

g. Violation of established safety regulations, rules, procedures, and

industry standards, API RP 2D and the Code of Federal Regulations, 33 CFR 250.108;

h. Failing to adhere to ENI, Wood Group and Bordelon Marine

company policies and procedures during the personnel basket lift operation, and API RP 2D sections 3.1.5, section 3.4.2, B.3.2.3, B3.4, and ENI pg. 10 under sections 5.2, item 3, (c) (d) and (e), and at page 10 under section 5.2, item 4 Banksman;

i. Negligent failure to properly assess the weather and sea conditions

at the time the personnel basket transfer was attempted from the vessel to the platform;

j. Failing to determine that the M/V WES BORDELON was properly

aligned under the personnel basket to allow for a safe straight lift up of the personnel basket from the deck of the M/V WES BORDELON;

k. Failing to provide a competent and properly trained crane operator

to conduct the personnel basket transfer from the M/V WES BORDELON to the platform;

l. Failing to stay in radio communication at all times with the

Captain and deckhand of the M/V WES BORDELON, and failing to have a hand-held radio for use during the personnel basket transfer;

m. Failing to correctly follow, and/or observe the hand signals of the

signalman located on the stern deck of the M/V WES BORDELON, including but not limited to, not commencing a personnel basket lift until such time that a signal has been given by the deckhand that all passengers were ready for the basket to be lifted;


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n. Failing to observe the vessel’s movement in the rough seas in order

to properly time the lift of the personnel basket when the vessel was maintaining position and the vessel’s deck is on the crest of the wave, and then continuing to lift the basket as the vessel descends into a trough;

o. Negligent failure to properly time the lift of the personnel basket

and not lifting the personnel basket in a smooth safe manner;

p. The crane operator negligently allowing the personnel basket to swing into equipment located on the stern deck of the M/V WES BORDELON and not making a conscious effort himself to check to see if the crane’s headache ball and fast line were directly above the personnel basket;

q. Negligent failure of the crane operator to have a clear line of sight

to the signalman and the crane’s headache ball and fast line at all times throughout the personnel lift operation;

r. Negligent failure of the crane operator to observe and confirm a

proper position of the personnel basket before making the personnel basket lift;

s. Failing to see what he should have seen in violation of Section B.3.2.3 under Appendix B – Crane Operation of API RP 2D; t. Failing to follow the Job Safety Analysis instructions, if any;

u. Direct violations by the crane operator of API RP 2D, sections 3.4.2 and C.3.4, and ENI’s Policies and Procedures for Offshore

Personnel Transfer as detailed in ENI’s Operating Work Instruction - Offshore Personnel Transfer (Bates stamped documents HLF000703 – 754); in particular sections 5 and 7;

v. Crane operator’s violation of the Wood Group documents GOM-

SWP – Cranes and Lifting Standards, specifically section 3.0 (Rules and Responsibilities), 4.0 (Standards/Regulatory Requirements) and 5.0 (Training – Crane Qualifications) and attachment One, and violations of the Wood Group Field Employee Handbook;


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w. Operation of the pedestal crane by Billy Nolan in violation of

ENI’s Crane Work Permit and in violation of the Code of Federal Regulations requiring the “designated crane operator” to operate the crane which violation is negligence per se;

x. Crane operator’s negligent failure in his responsibility to mitigate

the risk of vertical vessel movement during a basket transfer as the vessel itself is powerless to control its vertical movement.

y. The crane operator consciously choosing to transfer claimant from

the M/V WES BORDELON in an unsafe and improper manner and not exercising his stop work authority under the prevailing circumstances;

z. Whether the crane operator was given a hand signal “ok” by the deckhand prior to the lift of the personnel basket; aa. The crane operator failed to identify the risks and hazards in the method of transfer of the plaintiff that he utilized; bb. Failure to provide an adequate compliment of employees with

requisite skills and/or equipment to perform the tasks necessary to transfer plaintiff off of the vessel, including but not limited to, a banksman;

cc. As a result of the defendant’s failure to identify the risks or hazards

in the method of transfer utilized, the defendant failed to eliminate those risks of harm, or if they could not be eliminated, failed to minimize or reduce the risks of harm and injury to the plaintiff.

dd. Allowing Billy Nolan to operate the ENI crane without an ENI

Unit Work Permit.

b. The Remedy Prayed For: General, special, and punitive damages. c. The Law Supporting the Remedy: General Maritime Law; The Outer

Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.; 33 CFR 250.108, 33

CFR 250.198, the parties contract provisions, and the laws of the State of

Louisiana. Complainant’s punitive damages claims asserted against the

defendants arise under the general maritime law as a result of the defendant’s


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reckless, willful and wanton disregard for his personal safety. Callahan v.

Gulf Logistics, L.L.C., No. 6:06-CV-561 2013 WL 5236888 (W.D. La. Sept.

16, 2013)(permitting longshoreman allegedly injured trying to load his

personal belongings into a personnel transfer basket to pursue punitive

damages in a vessel negligence lawsuit pursuant to section 905(b) of the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”). In so

holding, the Western District of Louisiana wrote, “It seems clear that punitive

damages are available for actions under general maritime law unless Congress

has expressly forbade such availability. This court finds nothing in the

language of [section] 905(b) which could be construed as so limiting the

availability of punitive damages in a negligence action under the LHWCA.”);

Atlantic Sounding v. Townsend, 557 U.S. 404 (2009); Miles v. Apex Marine

Corp., 498 U.S. 19 (1990).

Bordelon Marine, LLC

a. The Law and Any Contractual Provision Supporting the Claim: General Maritime Law and Section 905(b) of the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 901 et seq, 46 CFR 109.521, 46 CFR 109.527, and the contractual provisions agreed to between Bordelon Marine, LLC and ENI US Operating Company, Inc.

a. Failing to provide claimant a safe place to work;

b. Failing to provide claimant with a safe means of ingress and egress from the M/V WES BORDELON;

c. Providing an incompetent master and crew to man the M/V WES

BORDELON; d. Negligently allowing the lifting of the personnel basket when it was not safe to do so;


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e. Failing to properly communicate with the crane operator before the personnel basket lift and failure to properly communicate by hand-

held radio’s with the crane operator during the lift, and failure to provide instructions for the procedures to be used during the personnel basket transfer by a participant; f. Failing to properly align the M/V WES BORDELON under the

personnel basket to allow for a safe straight lift of the personnel basket from the deck of the M/V WES BORDELON; g. Failing to provide a safe method to transfer claimant to and from the platform; h. Failing to use the personnel basket tagline to prevent the personnel basket from swinging like a pendulum when lifted off the stern

deck of the M/V WES BRODELON. i. Failing to have properly trained personnel to operate the personnel basket used to transfer employees to and from the fixed platform; j. Failing to provide the crane operator a hand-held radio before

commencing the personnel basket transfer; k. Failing to do what should have been done under the prevailing

circumstances; l. Failing to secure the tag line as the personnel basket was raised;

m. Violation of established safety regulations, ENI and Bordelon Marine rules, procedures and industry standards including ENI

page 10 under section 5.2, item 4, banksman; n. Failing to adhere to ENI and Bordelon Marine company policies

and procedures during the personnel basket lift operation, and violation of Code of Federal Regulations 46 CFR 109.527, and 46 CFR 109.521;

o. Failing to conduct and/or adhere to the Job Safety Analysis and/or

Tool Box Talk before conducting the personnel basket transfer from the vessel to the platform, including failing to communicate with the crane operator and deckhand before commencing with the personal basket lift procedure;

p. Negligent failure to properly assess the weather and sea conditions at the time the personnel basket transfer was attempted from the

vessel to the platform;


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q. Failing to remain in radio communication with the crane operator; r. Whether the deckhand gave the crane operator the “ok” hand signal prior to the crane operator lifting the personnel basket;

s. Failure of the deckhand to exercise stop work authority if he observed any passenger not holding onto the personnel basket properly;

t. Failure to exercise due care under the circumstances;

u. Failing to properly train the Captain and deckhand in the proper procedures to make a safe personnel basket transfer from the vessel to the platform;

v. Operational negligence of the M/V WES BORDELON at the time of the personnel basket lift by failing to maintain a satisfactory

station and violation of ENI page 10 under section 5.2, item 2 (c) and (d);

w. The Captain and crew of the M/V WES BORDELON failed to

identify the risks and hazards in the method of transfer of the claimant that was utilized, including but not limited to, instructing the passengers how to hold onto the personnel basket and ensuring satisfactory placement of equipment in the center of the personnel basket;

x. Failure to provide a safe means of disembarkation from the vessel;

y. Failure to provide an adequate compliment of employees with requisite skills and/or equipment to perform the tasks necessary to transfer claimant off of the vessel including requiring a banksman on the fixed offshore platform;

z. As a result of the defendant’s failure to identify the risks or hazards in the method of transfer utilized, the defendant failed to

eliminate those risks of harm, or if they could not be eliminated, failed to minimize or reduce the risks of harm and injury to the claimant;

aa. Failing to transfer the passengers work equipment separately;


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bb. Failure of the deckhand to communicate with the crane operator that the crane’s headache ball and fast line was not centered directly over the personnel basket and to not make the lift, including the deckhand giving the “All Stop” hand signal;

cc: Violation of ENI rules and procedures under “Communications”, and API RP 2D. dd. Allowing Billy Nolan to operate the ENI crane without an ENI

Unit Work Permit.

b. The Remedy Prayed For: General, special, and punitive damages. c. The Law Supporting the Remedy: General Maritime Law and Section

905(b) of the Longshore and Harbor Workers Compensation Act (LHWCA),

33 U.S.C. § 901 et seq, 46 CFR 109.521, 46 CFR 109.527, and the parties

contract provisions. Complainant’s punitive damages claims asserted against

the defendants arise under the general maritime law as a result of the

defendant’s reckless, willful and wanton disregard for his personal safety.

Callahan v. Gulf Logistics, L.L.C., No. 6:06-CV-561 2013 WL 5236888

(W.D. La. Sept. 16, 2013)(permitting longshoreman allegedly injured trying to

load his personal belongings into a personnel transfer basket to pursue

punitive damages in a vessel negligence lawsuit pursuant to section 905(b) of

the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). In so







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Corp., 498 U.S. 19 (1990).

ENI US Operating Company, Inc.

a. The Law and Any Contractual Provision Supporting the Claim: the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. and the laws of the State of Louisiana, 30 CFR 250.108, 30 CFR 250.198.

a. Providing a crane not equipped with a properly functioning radio to

allow the crane operator to stay in radio communication with the Captain of the M/V WES BORDELON at all critical times;

b. Failure to exercise due care under the circumstances, including but not

limited to, making provision to determine that both radio and visual communication were to be established and maintained between the principals concerned and by those persons actually conducting the transfer operation as provided in ENI Procedures at page 11 under section 5.4 “Communications”, and violation of ENI page 11 under section “Training”, and pages 13 and 14 section 7, “Personnel Basket Transfer”;

c. Failure to provide a safe means of ingress and egress from the M/V

WES BORDELON to the platform by failing to communicate with the Captain of the M/V WES BORDELON and crane operator prior to the personnel basket lift in violation of ENI rules and procedures;

d. Allowing the crane to be operated by a non-designated crane operator

in violation of API RP 2 D, and in violation of federal regulations, which violations amount to negligence per se;

e. Failing to advise the crane operator and the Captain of the M/V WES

BORDELON that the crane on the platform was not equipped with a properly functioning radio in advance of the crane operator’s arrival upon the fixed platform, and failing to include in the JSA, the use of a hand-held radio as a necessary job step;

f. Failing to do what it should have done under the circumstances;

g. Failing to conduct a JSA pursuant to ENI personnel transfer rules and procedures, and designating Tim Foxworth to complete the JSA when he was not familiar with ENI personnel transfer rules and procedures, including the required use of hand-held radios;


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h. Failure to provide claimant a safe place to work;

i. Failing to delay the personnel basket transfer due to the poor weather conditions in violation of ENI rules and procedures page 11, under section 5.3, “Weather Conditions”;

j. By Keith Cormier failing to adhere to ENI personnel transfer rules

and procedures, ENI failed to provide claimant a safe method to transfer from the M/V WES BORDELON to the platform;

k. Failing to have properly trained personnel to operate the crane and

the personnel basket used to transfer employees to and from the fixed platform;

l. Violation of established ENI safety regulations, rules and

procedures for personnel basket transfers detailed in ENI’s Operating Work Instructions Offshore Personnel Transfer (HLF 000730 – 766);

m. Failing to adhere to ENI company policies and procedures for conducting a personnel basket lift operation including by actions or

omissions allowing Billy Nolan to operate the crane without obtaining an ENI Safe Work Permit and/or ENI Unit Work Permit;

n. Negligent planning by its employees, including properly

communicating ENI policies and procedures to the employees of ENI’s independent contractors, including procedures for personnel basket transfers, and failing to provide the Master of the M/V WES BORDELON with a copy of the ENI Unit and/or Safe Work Permit designating Tim Foxworth as the crane operator, and failing to advise the Master of the vessel that the crane located on Vermilion 313-C did not have an operable radio;

o. Failure to maintain the fixed platform in compliance with

occupational safety and health standards and free from recognized hazards to employees or persons working on the platform;

p. Failure of the operator of the platform to comply with any rule, regulation, order, or work permit issued; q. Allowing Billy Nolan to operate the crane in violation of the ENI Unit and/or Safe Work Permit;


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r. Failure of ENI employee, Keith Cormier, to ensure ENI safety procedures and rules were followed on the job by its independent contractor employees and Keith Cormier’s violation of ENI rules and procedures including but not limited to, Safe Practices and Procedures, detailed in sections 5 and 7;

s. Violations of ENI’s Operating Work Instructions – Offshore Personnel Transfer, page 9 at sections 5, 5.2, item 1, 5.2, item 2, and failing to require a banksman;

t. Violations of ENI Operator Requirements, Procedures page 14,

section 7.2 and 46 CFR 109.527.

u. Failing to provide a hand-held radio to Tim Foxworth and Billy Nolan prior to boarding the M/V WES BORDELON;

v. Failing to properly instruct Tim Foxworth of ENI’s rules requiring

the use of hand-held radios when operating ENI cranes;

w. Providing a crane for use in a personnel basket transfer that was in a ruinous condition as it lacked an operable radio;

x. By setting in motion a personnel basket transfer that lacked the

ENI safety checks and balances established in ENI personnel basket rules and procedures which would have prevented the accident;

y. By designating a Wood Group employee to explain the initial

platform orientation procedures to Orvel P. Hale;

z. Allowing Billy Nolan to sign the JSA after the accident involving Orvel P. Hale.

aa. Negligently allowing Billy Nolan to operate the ENI crane without an ENI Unit Work Permit and failing to provide Bordelon Marine, LLC with a copy of the ENI Unit Work Permit to be adhered to during the personnel basket lift of Orvel P. Hale.

b. The Remedy Prayed For: General, special, and punitive damages.

c. The Law Supporting the Remedy: the Outer Continental Shelf Lands Act,

43 U.S.C. § 1331 et seq. and the laws of the State of Louisiana, and 33 CFR


14

250.108, 33 CFR 250.198. Complainant’s punitive damages claims asserted

against the defendants arise under the general maritime law as a result of the

defendant’s reckless, willful and wanton disregard for his personal safety.

Callahan v. Gulf Logistics, L.L.C., No. 6:06-CV-561 2013 WL 5236888

(W.D. La. Sept. 16, 2013)(permitting longshoreman allegedly injured trying to

load his personal belongings into a personnel transfer basket to pursue

punitive damages in a vessel negligence lawsuit pursuant to section 905(b) of

the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). In so







Corp., 498 U.S. 19 (1990).

2(B). Complainant’s Response to Defendant Claims of Contributory Negligence:

Complainant, Orvel P. Hale did not violate his employer’s or ENI company policy

governing use of prescription medication offshore, and was not impaired or under their influence

at the time of his accident.

Complainant, Orvel P. Hale, post-accident positive urine drug screen test result for

amphetamine and hydrocodone would have been reported negative by Dr. Brian Heinan, the

medical review test officer, had Orvel P. Hale timely presented his valid prescriptions for

Adderall and Hydrocodone within the ten (10) day rule (non-contact).


15

Complainant was a non-DOT employee that could have been allowed to work after

taking his medications as prescribed by his treating physician, Dr. Steven Vidrine, if approved by

Dr. Vidrine and Oceaneering.

Oceaneering had prior knowledge of Orvel P. Hale’s prescription use of Adderall and

Lortab. Oceaneering’s physician who conducted Orvel P. Hale’s pre-employment physical

examination had knowledge of Orvel P. Hale’s medications (Adderall and Lortab) and declared

Orvel P. Hale fit for duty to perform the work tasks provided in Oceaneering’s job description

for a Technician Level One.

Orvel P. Hale told either a Wood Group or ENI employee during his ENI platform

orientation that he had brought his prescription medications to the platform. Orvel P. Hale had

been on other ENI fixed offshore platforms and ENI approved the use of the same medicines he

tested positive for post-accident.

ENI’s lead operator, Keith “Blu” Cormier, did not object to Orvel P. Hale’s use of his

prescribed medication, Lortab, post-accident. Orvel Hale’s post-accident consumption of Lortab

resulted in his positive post-accident hydrocodone urine drug screen test result.

If Orvel P. Hale violated ENI and Oceaneering company prescription medication rule,

such violations, which are denied, were not a cause in fact of Orvel P. Hale’s accident and

injuries.

Orvel P. Hale used his experience and training and followed industry practices during the

personnel basket transfer. Orvel P. Hale and the other personnel basket passengers were not

negligent for not exercising their stop work authority.

Orvel P. Hale did not suffer from a first time, sporadic and sudden unexplained episode

of cognitive impairment as suggested by the defense as a result of taking his hydrocodone the


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night before his accident. Orvel P. Hale’s consumption of his Lortab medication the night before

his accident did not cause the crane operator to jerk the personnel basket hard and fast from the

M/V WES BORDELON’s stern deck when the ENI crane’s headache ball and fast-line were not

properly centered over the personnel basket causing the basket to suddenly swing into a nearby

chained down piece of equipment, knocking Orvel P. Hale’s feet from under him and causing

Orvel P. Hale to lose his grip on the netting of the basket and falling approximately ten (10) feet

to the vessel deck below him.

Responses on behalf of Defendants

Responses on behalf of ENI US Operating Co., Inc.:

The claims against ENI US Operating Co., Inc. are governed by Louisiana law by virtue of OCSLA, 43 U.S.C. §1331, et seq.

ENI US Operating Co., Inc. has asserted Orvel P. Hale’s claimed accident and injuries, if any, were caused or contributed to by Orvel P. Hale’s own fault and neglect, and/or any complained of conditions were open and obvious, which were pled in bar or in diminution of any recovery.

ENI US Operating Co., Inc. has asserted Orvel P. Hale’s alleged accident and injuries, if any, were caused or occasioned by the fault or neglect of parties for whom ENI US Operating Co., Inc. is not responsible.

ENI US Operating Co., Inc. has asserted that Orvel P. Hale’s medical, physical and mental condition(s) are not the result of any incident described in Orvel P. Hale’s Complaint for Damages, but rather pre-existed or occurred prior to or subsequent to the alleged incident of 3 June 2014, and/or have no causal connection to the alleged incident of 3 June 2014.

ENI US Operating Co., Inc. has asserted Orvel P. Hale has failed to mitigate his damages.

ENI US Operating Co., Inc. asserted entitlement to set off and/or credit for all payments made to or on behalf of Orvel P. Hale by any other source, collateral or otherwise.

ENI US Operating Co., Inc. has asserted that Orvel P. Hale is barred from bringing this suit due to his status as a statutory or borrowed employee.


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Orvel P. Hale’s claims are based on the allegation that ENI violated company policy with respect to the personnel basket transfer. ENI denies that it violated the company policy. ENI has asserted the independent contractor defense, specifically, that it is not responsible for the actions of its independent contractors. Orvel P. Hale claims that ENI is responsible for an alleged defective crane because the crane was inoperable. ENI submits that Vermilion 313C is an unmanned platform and that the battery in the radio on the crane does not maintain its charge due to lack of personnel on the platform. ENI took steps to provide its independent contractors hand held radios to eliminate the risk of lack of communication. Louisiana law does not allow the recovery of punitive damages. International Harvester Credit Corp. v. Seale, 518 So.2d 1039 (La. 1988). Louisiana law does not recognize negligence per se. Galloway v. State Dept. of Transportation Development, 94-2727 (La. 5/22/95) 654 So.2d 1345, 1347; Burns v. CLK Investments V. L.L.C., 2010-0277 (La. App. 4 Cir. 9/1/10) 45 So.3d 1152, 1158. Responses on behalf of Bordelon Marine, LLC:

Bordelon Marine, LLC submits that there are factual, legal and contractual issues to be resolved in this matter. Bordelon has asserted that Orvel P. Hale’s alleged accident and injuries, if any, were caused or contributed to by his own fault, or the fault of persons for whom Bordelon Marine, LLC is not liable. Alternatively, Bordelon Marine, LLC has asserted limitation of liability.

Bordelon Marine, LLC has further asserted that Orvel P. Hale’s alleged accident and injuries, if any, were a consequence of Orvel P. Hale’s accepted and ordinary risks, and that Orvel P. Hale has failed to mitigate his damages, if any.

Orvel P. Hale has not alleged that Bordelon Marine was grossly negligent or that it acted willfully or wantonly. Therefore, Orvel P. Hale is not entitled to punitive damages. Bordelon Marine submits that it did not violate any statute that plaintiff would fall under the class of individuals to be protected. In Re Oil Spill by the Oil Rig DEEPWATER HORIZON, 2011 WL 4575696 (E.D. La. 10/4/11)

Responses on behalf of Wood Group PSN, Inc.:

Wood Group PSN, Inc. has asserted Orvel P. Hale’s claimed accident and injuries, if any, were caused or contributed to by Orvel P. Hale’s own fault and negligence and/or any complained of conditions were open and obvious, which were pled in bar or in diminution of any recovery.

Wood Group PSN, Inc. has asserted Orvel P. Hale’s alleged accident and injuries, if any, were caused or occasioned by the fault or negligence of parties for whom Wood Group PSN, Inc. is not responsible.


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Wood Group PSN, Inc. has asserted that Orvel P. Hale’s medical, physical and mental condition(s) are not the result of any incident described in Orvel P. Hale’s Complaint for Damages but rather pre-existed or occurred prior to or subsequent to the alleged incident of 3 June 2014, and/or have no causal connection to the alleged incident of 3 June 2014.

Wood Group PSN, Inc. has asserted Orvel P. Hale has failed to mitigate his damages, if any.

Wood Group PSN, Inc. has asserted entitlement to off set and/or credit for all payments made to or on behalf of Orvel P. Hale by any other source, collateral or otherwise.

Wood Group PSN, Inc. has asserted that Orvel P. Hale is barred from bringing this suit due to his status as a statutory or borrowed employee of ENI US Operating Co., Inc.

Orvel P. Hale’s claims against Wood Group PSN, Inc. are governed by Louisiana law, which does not recognize a claim for punitive damages. International Harvester Credit Corp. v. Seale, 518 So.2d 1039 (La. 1988). Further, Louisiana law does not recognize negligence per se. Galloway v. State Dept. of Transportation Development, 94-2727 (La. 5/22/95) 654 So.2d 1345, 1347; Burns v. CLK Investments V. L.L.C., 2010-0277 (La. App. 4 Cir. 9/1/10) 45 So.3d 1152, 1158.

3. Issues of Fact and Issue of Law:

Orvel P. Hale, Complainant:

Issues of Fact: (Claims)

1. Whether the defendant, Wood Group PSN, Inc., through its employee’s actions,

and the negligent actions of their crane operator employee were negligent in:

a. Failing to exercise due care under the circumstances;

b. Failing to provide Orvel P. Hale with a safe means of ingress and egress from the M/V WES BORDELON;

c. Failing to conduct and/or adhere to the Job Safety Analysis before conducting the personnel basket transfer from the vessel to the platform and failing to communicate with the vessel’s Captain and deckhand prior to commencing the personnel basket lift;

d. Negligent lifting of the personnel basket when it was not safe to do so, and

lifting the personnel basket at a time when the pedestal crane’s headache ball and fast line were not centered directly over the personnel basket;


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e. Failing to provide a safe method to transfer petitioner to and from the platform by appropriately timing the lift of the personnel basket from the vessel’s deck while ensuring that the crane was positioned directly above the personnel basket, such that the crane wire was vertical;

f. Failing to do what should have been done under the prevailing

circumstances, including but not limited to, raising the personnel basket in such a manner to minimize swinging;

g. Violation of established safety regulations, rules, procedures, and industry

standards, API RP 2D and the Code of Federal Regulations, 33 CFR 250.108;

h. Failing to adhere to ENI, Wood Group and Bordelon Marine company

policies and procedures during the personnel basket lift operation, and API RP 2D sections 3.1.5, B.3.4, 3.4.2, and ENI pg. 10 under sections 5.2, item 3, (c) (d) and (e), and at page 10 under section 5.2, item 4 Banksman;

i. Negligent failure to properly assess the weather and sea conditions at the

time the personnel basket transfer was attempted from the vessel to the platform;

j. Failing to determine that the M/V WES BORDELON was properly

aligned under the personnel basket to allow for a safe straight lift up of the personnel basket from the deck of the M/V WES BORDELON;

k. Failing to provide a competent and properly trained crane operator to

conduct the personnel basket transfer from the M/V WES BORDELON to the platform;

l. Failing to stay in radio communication at all times with the Captain and

deckhand of the M/V WES BORDELON, and failing to have a hand-held radio for use during the personnel basket transfer;

m. Failing to correctly follow, and/or observe the hand signals of the

signalman located on the stern deck of the M/V WES BORDELON, including but not limited to, not commencing a personnel basket lift until such time that a signal has been given by the deckhand that all passengers were ready for the basket to be lifted;

n. Failing to observe the vessel’s movement in the rough seas in order to

properly time the lift of the personnel basket when the vessel was maintaining position and the vessel’s deck is on the crest of the wave, and then continuing to lift the basket as the vessel descends into a trough;


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o. Negligent failure to properly time the lift of the personnel basket and not lifting the personnel basket in a smooth safe manner;

p. The crane operator negligently allowing the personnel basket to swing into

equipment located on the stern deck of the M/V WES BORDELON and not making a conscious effort himself to check to see if the crane’s headache ball and fast line were directly above the personnel basket;

q. Negligent failure of the crane operator to have a clear line of sight to the

signalman and the crane’s headache ball and fast line at all times throughout the personnel lift operation;

r. Negligent failure of the crane operator to observe and confirm a proper

position of the personnel basket before making the personnel basket lift; s. Failing to see what he should have seen in violation of Section B.3.2.3

under Appendix B – Crane Operation of API RP 2D; t. Failing to follow the Job Safety Analysis instructions, if any;

u. Direct violations by the crane operator of API RP 2D, sections 3.4.2 and C.3.4, and ENI’s Policies and Procedures for Offshore Personnel Transfer as detailed in ENI’s Operating Work Instructions Offshore Personnel Transfer (Bates stamped documents HLF000703 – 754); in particular sections 5 and 7;

v. Crane operator’s violation of the Wood Group documents GOM-SWP –

Cranes and Lifting Standards, specifically section 3.0 (Rules and Responsibilities), 4.0 (Standards/Regulatory Requirements) and 5.0 (Training – Crane Qualifications) and attachment One, and violations of the Wood Group Field Employee Handbook;

w. Operation of the pedestal crane by Billy Nolan in violation of ENI’s Crane

Work Permit and in violation of the Code of Federal Regulations requiring the “designated crane operator” to operate the crane which violation is negligence per se;

x. Crane operator’s negligent failure in his responsibility to mitigate the risk

of vertical vessel movement during a basket transfer as the vessel itself is powerless to control its vertical movement.

y. The crane operator consciously choosing to transfer claimant from the

M/V WES BORDELON in an unsafe and improper manner and not exercising his stop work authority under the prevailing circumstances;


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z. Whether the crane operator was given a hand signal “ok” by the deckhand prior to the lift of the personnel basket;

aa. The crane operator failed to identify the risks and hazards in the method of

transfer of the plaintiff that he utilized; bb. Failure to provide an adequate compliment of employees with requisite

skills and/or equipment to perform the tasks necessary to transfer plaintiff off of the vessel, including but not limited to, a banksman;

cc. As a result of the defendant’s failure to identify the risks or hazards in the

method of transfer utilized, the defendant failed to eliminate those risks of harm, or if they could not be eliminated, failed to minimize or reduce the risks of harm and injury to the plaintiff.

dd. Allowing Billy Nolan to operate the ENI crane without an ENI Unit Work Permit. 2. Whether the defendant, Bordelon Marine, LLC, and its employees were negligent and breached their duty owed to Orvel P. Hale by: a. Failing to provide claimant a safe place to work;

b. Failing to provide claimant with a safe means of ingress and egress from the M/V WES BORDELON;

c. Providing an incompetent master and crew to man the M/V WES

BORDELON; d. Negligently allowing the lifting of the personnel basket when it was not safe to do so; e. Failing to properly communicate with the crane operator before the

personnel basket lift and failure to properly communicate by hand-held radio’s with the crane operator during the lift, and failure to provide instructions for the procedures to be used during the personnel basket transfer by a participant;

f. Failing to properly align the M/V WES BORDELON under the personnel

basket to allow for a safe straight lift of the personnel basket from the deck of the M/V WES BORDELON;


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g. Failing to provide a safe method to transfer claimant to and from the platform;

h. Failing to use the personnel basket tagline to prevent the personnel basket

from swinging like a pendulum when lifted off the stern deck of the M/V WES BRODELON.

i. Failing to have properly trained personnel to operate the personnel basket

used to transfer employees to and from the fixed platform; j. Failing to provide the crane operator a hand-held radio before

commencing the personnel basket transfer; k. Failing to do what should have been done under the prevailing

circumstances; l. Failing to secure the tag line as the personnel basket was raised;

m. Violation of established safety regulations, ENI and Bordelon Marine rules, procedures and industry standards including ENI page 10 under

section 5.2, item 4, banksman; n. Failing to adhere to ENI and Bordelon Marine company policies and

procedures during the personnel basket lift operation, and violation of Code of Federal Regulations 46 CFR 109.527 and 46 CFR 109.521;

o. Failing to conduct and/or adhere to the Job Safety Analysis and/or Tool

Box Talk before conducting the personnel basket transfer from the vessel to the platform, including failing to communicate with the crane operator and deckhand before commencing with the personal basket lift procedure;

p. Negligent failure to properly assess the weather and sea conditions at the

time the personnel basket transfer was attempted from the vessel to the platform;

q. Failing to remain in radio communication with the crane operator; r. Whether the deckhand gave the crane operator the “ok” hand signal prior to the crane operator lifting the personnel basket; s. Failure of the deckhand to exercise stop work authority if he observed any

passenger not holding onto the personnel basket properly; t. Failure to exercise due care under the circumstances;


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u. Failing to properly train the Captain and deckhand in the proper procedures to make a safe personnel basket transfer from the vessel to the platform;

v. Operational negligence of the M/V WES BORDELON at the time of the

personnel basket lift by failing to maintain a satisfactory station and violation of ENI page 10 under section 5.2, item 2 (c) and (d);

w. The Captain and crew of the M/V WES BORDELON failed to identify the

risks and hazards in the method of transfer of the claimant that was utilized, including but not limited to, instructing the passengers how to hold onto the personnel basket and ensuring satisfactory placement of equipment in the center of the personnel basket;

x. Failure to provide a safe means of disembarkation from the vessel;

y. Failure to provide an adequate compliment of employees with requisite skills and/or equipment to perform the tasks necessary to transfer claimant off of the vessel including requiring a banksman on the fixed offshore platform;

z. As a result of the defendant’s failure to identify the risks or hazards in the

method of transfer utilized, the defendant failed to eliminate those risks of harm, or if they could not be eliminated, failed to minimize or reduce the risks of harm and injury to the claimant;

aa. Failing to transfer the passengers work equipment separately; bb. Failure of the deckhand to communicate with the crane operator that the

crane’s headache ball and fast line was not centered directly over the personnel basket and to not make the lift, including the deckhand giving the “All Stop” hand signal;

cc: Violation of ENI rules and procedures under “Communications”, and API

RP 2D.

dd. Allowing Billy Nolan to operate the ENI crane without an ENI Unit Work Permit.

3. Whether the defendant, ENI US Operating Company, Inc. employee’s actions

were negligent by:


24

a. Providing a crane not equipped with a properly functioning radio to allow the crane operator to stay in radio communication with the Captain of the M/V WES BORDELON at all critical times;

b. Failure to exercise due care under the circumstances, including but not

limited to, making provision to determine that both radio and visual communication were to be established and maintained between the principals concerned and by those persons actually conducting the transfer operation as provided in ENI Procedures at page 11 under section 5.4 “Communications”, and violation of ENI page 11 under section “Training”, and pages 13 and 14 section 7, “Personnel Basket Transfer”;

c. Failure to provide a safe means of ingress and egress from the M/V WES

BORDELON to the platform by failing to communicate with the Captain of the M/V WES BORDELON and crane operator prior to the personnel basket lift in violation of ENI rules and procedures;

d. Allowing the crane to be operated by a non-designated crane operator in

violation of API RP 2 D, and in violation of federal regulations, which violations amount to negligence per se;

e. Failing to advise the crane operator and the Captain of the M/V WES

BORDELON that the crane on the platform was not equipped with a properly functioning radio in advance of the crane operator’s arrival upon the fixed platform, and failing to include in the JSA, the use of a hand- held radio as a necessary job step;

f. Failing to do what it should have done under the circumstances;

g. Failing to conduct a JSA pursuant to ENI personnel transfer rules and procedures, and designating Tim Foxworth to complete the JSA when he was not familiar with ENI personnel transfer rules and procedures, including the required use of hand-held radios;

h. Failure to provide claimant a safe place to work;

i. Failing to delay the personnel basket transfer due to the poor weather conditions in violation of ENI rules and procedures page 11, under section 5.3, “Weather Conditions”;

j. By Keith Cormier failing to adhere to ENI personnel transfer rules and

procedures, ENI failed to provide claimant a safe method to transfer from the M/V WES BORDELON to the platform;


25

k. Failing to have properly trained personnel to operate the crane and the personnel basket used to transfer employees to and from the fixed platform;

l. Violation of established ENI safety regulations, rules and procedures for

personnel basket transfers detailed in ENI’s Operating Work Instructions Offshore Personnel Transfer (HLF 000730 – 766);

m. Failing to adhere to ENI company policies and procedures for conducting

a personnel basket lift operation including by actions or omissions allowing Billy Nolan to operate the crane without obtaining an ENI Safe Work Permit and/or ENI Unit Work Permit;

n. Negligent planning by its employees, including properly communicating

ENI policies and procedures to the employees of ENI’s independent contractors, including procedures for personnel basket transfers, and failing to provide the Master of the M/V WES BORDELON with a copy of the ENI Unit and/or Safe Work Permit designating Tim Foxworth as the crane operator, and failing to advise the Master of the vessel that the crane located on Vermilion 313-C did not have an operable radio;

o. Failure to maintain the fixed platform in compliance with occupational

safety and health standards and free from recognized hazards to employees or persons working on the platform;

p. Failure of the operator of the platform to comply with any rule, regulation,

order, or work permit issued; q. Allowing Billy Nolan to operate the crane in violation of the ENI Unit

and/or Safe Work Permit; r. Failure of ENI employee, Keith Cormier, to ensure ENI safety procedures

and rules were followed on the job by its independent contractor employees and Keith Cormier’s violation of ENI rules and procedures including but not limited to, Safe Practices and Procedures, detailed in sections 5 and 7;

s. Violations of ENI’s Operating Work Instructions – Offshore Personnel

Transfer, page 9 at sections 5, 5.2, item 1, 5.2, item 2, and failing to require a banksman;

t. Violations of ENI Operator Requirements, Procedures page 14, section 7.2

and 46 CFR 109.527.


26

u. Failing to provide a hand-held radio to Tim Foxworth and Billy Nolan prior to boarding the M/V WES BORDELON; v. Failing to properly instruct Tim Foxworth of ENI’s rules requiring the use

of hand-held radios when operating ENI cranes; w. Providing a crane for use in a personnel basket transfer that was in a

ruinous condition as it lacked an operable radio; x. By setting in motion a personnel basket transfer that lacked the ENI safety

checks and balances established in ENI personnel basket rules and procedures which would have prevented the accident;

y. By designating a Wood Group employee to explain the initial platform

orientation procedures to Orvel P. Hale; z. Allowing Billy Nolan to sign the JSA after the accident involving Orvel P.

Hale. aa. Negligently allowing Billy Nolan to operate the ENI crane without an ENI Unit Work Permit and negligently failing to provide Bordelon Marine, LLC with a copy of the ENI Unit Work Permit to be adhered to during the personnel basket lift of Orvel P. Hale. 4. The percentage allocation of fault assigned to each defendant. 5. Whether Orvel P. Hale is entitled to be awarded general damages. 6. Whether Orvel P. Hale is entitled to an award of special damages. 7. Whether Orvel P. Hale is entitled to an award of punitive damages. 8. The amounts, if any, Orvel P. Hale is entitled to be awarded for general, special,

and punitive damages.

9. Whether the defendants consciously disregarded or were indifferent to the risk

of harm to Orvel P. Hale and whether their conduct constitutes reckless, willful,

or wanton disregard for the personal safety of the claimant entitling Orvel P. Hale

to the recovery of punitive damages.


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10. The nature and extent of claimant’s injuries.

11. The nature and extent of Orvel P. Hale’s loss of earnings and future loss of

earning capacity.

12. The nature and extent of future medical treatment for Orvel P. Hale.

13. Whether Orvel P. Hale was in violation of Oceaneering International Inc.’s

prescription medication policy.

14. Whether Orvel P. Hale was in violation of ENI’s prescription medication policy.

15. Whether Orvel P. Hale’s alleged violation of Oceaneering International Inc.’s

prescription medication policy was a cause in fact of Orvel P. Hale’s accident

and injuries.

16. Whether Orvel P. Hale’s alleged violation of ENI’s prescription medication

policy was a cause in fact of Orvel P. Hale’s accident and injuries.

17. Whether or not Orvel P. Hale was “impaired” or “under the influence” due to his

prescription medication use and whether such alleged impairment caused Orvel P.

Hale’s accident.

18. Whether or not Orvel P. Hale was previously allowed by ENI’s medical officer to

take his prescribed medication as ordered by his treating physician while working

on other ENI fixed offshore platforms prior to his accident on June 3, 2014.

19. Whether Orvel P. Hale was contributorily at fault and whether such contributory

fault caused Mr. Hale’s accident and injuries, and if so, the allocation percentage

of his alleged contributory fault.


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ENI US Operating Co., Inc., Bordelon Marine, LLC and Wood Group PSN, Inc.’s Issues of Fact

a. Whether ENI US Operating Co., Inc. was negligent and the causal relationship, if

any, as respects the personnel basket transfer operation and the incident of 3 June 2014, claimed by Orvel P. Hale;

b. Whether Bordelon Marine, LLC was negligent and the causal relationship, if any,

as respects the personnel basket transfer operation and the incident of 3 June 2014, claimed by Orvel P. Hale;

c. Whether Wood Group PSN, Inc. was negligent and the causal relationship, if any,

as respects the personnel basket transfer operation and the incident of 3 June 2014, claimed by Orvel P. Hale;

d. The facts pertaining to the personnel basket transfer operation and facts pertaining

to the incident of 3 June 2014, claimed by Orvel P. Hale; e. Orvel P. Hale’s improper use of personnel basket transfer technique;

f. The facts pertaining to the personnel basket transfer operation and facts pertaining

to Orvel P. Hale’s actions, negligence and legal fault as respects the incident of 3 June 2014, claimed by Orvel P. Hale;

g. The facts pertaining to the personnel basket transfer operation and facts pertaining

to Orvel P. Hale’s claimed injuries and damages as respects the incident of 3 June 2014, claimed by Orvel P. Hale;

h. Orvel P. Hale’s failure to follow ENI US Operating Co., Inc.’s policies and

procedures;

i. Orvel P. Hale’s failure to follow Bordelon Marine, LLC’s policies and procedures;

j. Orvel P. Hale’s failure to follow Wood Group PSN, Inc.s’ policies and

procedures;

k. Orvel P. Hale’s failure to follow Oceaneering International, Inc.s’ policies and procedures;

l. Orvel P. Hale’s violation of ENI US Operating Co., Inc.’s Field Operations Drug

and Alcohol Procedure;


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m. Orvel P. Hale’s violation of Oceaneering International, Inc.’s Company Policy on Alcohol and Drug Abuse, Effective October 1, 2002;

n. Orvel P. Hale’s possession of Hydrocodone while offshore for the time period 31 May to 3 June 2014; o. Orvel P. Hale’s possession of Adderall while offshore for the time period 31 May to 3 June 2014; p. The 3 June 2014 Drug Test Report showing a positive result for Orvel P. Hale’s

use of Amphetamines and Opiates; q. Whether Orvel P. Hale improperly used Hydrocodone while offshore for the time

period 31 May to 3 June 2014; r. Whether Orvel P. Hale improperly used Adderall while offshore for the time

period 31 May to 3 June 2014; s. Orvel P. Hale’s history of use of Hydrocodone and/or Adderall as respects his

employability offshore; t. Orvel P. Hale’s duties and responsibilities as a Level I E/C Assistant Technician

and as respects Orvel P. Hale’s claimed incident of 3 June 2014, and Orvel P. Hale’s failure to take reasonable and available measures for his personal safety and well being;

u. Orvel P. Hale’s training and experience using personnel baskets;

v. The cause, nature, duration and extent of plaintiff’s injuries, as respects the

personnel basket transfer operation and the incident of 3 June 2014, claimed by Orvel P. Hale;

w. Orvel P. Hale’s medical condition before and after the incident of 3 June 2014,

claimed by Orvel P. Hale;

x. Orvel P. Hale’s medical diagnosis as respects the incident of 3 June 2014, claimed by Orvel P. Hale;

y. Orvel P. Hale’s medical prognosis as respects the incident of 3 June 2014,

claimed by Orvel P. Hale;

z. Orvel P. Hale’s ability to return to gainful employment;

aa. Orvel P. Hale’s future wage earning capacity;


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bb. Orvel P. Hale’s past, present and future medical expenses;

cc. Orvel P. Hale’s claimed loss of past, present and future loss of wages, fringe benefits and wage earning capacity;

dd. Orvel P. Hale’s claimed special damages, if, any;

ee. Orvel P. Hale’s claimed general damages, if, any;

ff. Orvel P. Hale’s claimed past and future physical disability and/or loss of

enjoyment of life;

gg. All facts related to Orvel P. Hale’s employment history, including but not limited to Orvel P. Hale’s training and employment physicals;

hh. All facts claimed by and/or pertaining to Orvel P. Hale’s claimed incident of 3 June 2014; and

ii. Whether Orvel P. Hale has timely and properly mitigated his damages. Orvel P. Hale, Claimant:

Issues of Law:

(1) Whether the defendant, Wood Group PSN, Inc. (Wood Group), was negligent,

and if so, whether the Wood Group’s negligence caused or contributed to the injuries sustained

by Orvel P. Hale as a result of his accident on June 3, 2014.

(2) Whether the defendant, Bordelon Marine, LLC, (Bordelon Marine), was

negligent, and if so, whether Bordelon Marine’s negligence caused or contributed to the injuries

sustained by Orvel P. Hale as a result of his accident on June 3, 2014.

(3) Whether the defendant, ENI US Operating Company, Inc., (ENI), was negligent,

and if so, whether ENI’s negligence caused or contributed to the injuries sustained by Orvel P.

Hale as a result of his accident on June 3, 2014.


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(4) Whether the defendant’s actions violated regulations controlling personnel basket

transfers and whether such violations are considered negligence per se.

(5) Apportionment of personal injury general and special damages, if any, between

the defendants, Wood Group, Bordelon Marine, and ENI for the injuries sustained by Orvel P.

Hale.

(6) The total recoverable damages sustained by Orvel P. Hale for his past pain and

suffering, future physical pain and suffering, past mental pain and suffering, future mental pain

and suffering, past medical expenses, future medical expenses, past loss of earnings and loss of

employer provided fringe benefits, future loss of earnings or loss of earning capacity, and loss of

employer provided fringe benefits, past and future physical disability, impairment and

inconvenience, past loss of enjoyment of life, future loss of enjoyment of life.

(7) Whether the defendants, Wood Group, Bordelon Marine, and ENI consciously

disregarded or were indifferent to the risk of harm to Orvel P. Hale and the defendants’ conduct

constitutes reckless, willful or wanton disregard for the personal safety of Orvel P. Hale, entitling

Orvel P. Hale to recover punitive damages from the defendants.

(8) Apportionment of punitive damages, if any, between the defendants, Wood

Group, Bordelon Marine, and ENI.

(9) Whether claimant, Orvel P. Hale, was contributorily negligent, and if so, whether

such alleged contributory negligence was a cause in fact of his injuries.

(10) The percentage of contributory negligence to be assigned to Orvel P. Hale, if any.


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ENI US Operating Co., Inc., Bordelon Marine, LLC and Wood Group PSN, Inc.’s Issues of Law

a. Whether ENI US Operating Co., Inc.’s negligence, if any, was a legal cause of Orvel P. Hale’s incident and/or injuries;

b. Whether Bordelon Marine, LLC’s negligence, if any, was a legal cause of Orvel P. Hale’s incident and/or injuries;

c. Whether Wood Group PSN, Inc.’s negligence, if any, was a legal cause of Orvel

P. Hale’s incident and/or injuries; d. Whether Orvel P. Hale’s negligence and/or contributory negligence was a legal

cause of the incident and/or injuries;

e. Whether Louisiana law recognizes a claim for punitive damages;

f. Whether Orvel P. Hale has plead sufficient facts to assert a claim for punitive damages under General Maritime Law against Borleon Marine, LLC;

g. Whether Orvel P. Hale is entitled to the Housley presumption;

h. Whether Orvel P. Hale is an eggshell plaintiff;

i. Whether Louisiana law recognizes negligence per se;

j. Whether any defendant violated any statute that Orvel P. Hale falls under the class of persons protected by that statute;

k. Legal fault for the incident at issue and proper allocation thereof;

l. Comparative fault of each party, if any, for Orvel P. Hale’s damages, if any;

m. Orvel P. Hale’s claims for special damages, if any;

Orvel P. Hale’s claims for general damages, if any; and

n. Whether plaintiff has fully and properly mitigated his damages.


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4. Plaintiff’s Proposed Stipulations:

1. At all relevant times, ENI, the leaseholder and operator of Vermilion 313-B, 313-

C, and 313-D fixed offshore platforms located in the Gulf of Mexico, contracted

with Oceaneering International Inc. (“Oceaneering”) to provide inspections,

materials testing and integrity management services for the ENI fixed offshore

platforms.

2. Complainant, Orvel P. Hale, was employed by Oceaneering as an

erosion/corrosion Technician Level I on June 3, 2014.

3. At all relevant times, Oceaneering assigned a two-member team to perform an

erosion/corrosion survey of certain ENI Vermilion fixed offshore platform assets.

4. On June 3, 2014, Orvel P. Hale was a member of the two man Oceaneering team

assigned to perform those services. Orvel P. Hale’s Oceaneering Supervisor,

Kyle Denson, was the other member of the two-man team.

5. At all relevant times, ENI contracted with Wood Group PSN, Inc. (“Wood

Group”) for Wood Group to provide skilled personnel to operate, maintain and

service the ENI Vermilion fixed offshore platforms.

6. At all relevant times, Bordelon Marine, LLC was the owner and operator of the

M/V WES BORDELON.

7. At all relevant times, ENI contracted with Bordelon Marine, LLC (“Bordelon

Marine”), for marine transportation in support of services for ENI’s Vermilion

fixed offshore platforms.


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8. At all relevant times, Bordelon Marine, was the owner and operator of the M/V

WES BORDELON.

9. The M/V WES BORDELON is a U.S.C.G. inspected Offshore Supply Vessel

(OSV) measuring one hundred fifty (150) feet in length, thirty-six (36) feet in

breadth.

10. At all relevant times, the M/V WES BORDELON, was under the operation and

control of Captain Graig France, and Christopher Galloway was a

member of its crew providing deckhand and engineer duties.

11. At all relevant times, the Wood Group service employees were Timothy

Foxworth, operator/crane operator, Billy Nolan, mechanic/crane operator, and

Cedric Pellerin, electrician.

12. ENI’s Vermilion 313-D, was a manned fixed offshore platform with ENI

employee, Keith “Blu” Cormier, assigned as the lead operator, person in charge

(PIC).

13. ENI’s Vermilion 313-C was an unmanned fixed offshore platform.

14. ENI’s Vermilion 313-C unmanned fixed offshore platform was equipped with a

pedestal crane owned by ENI.

15. At all relevant times, the M/V WES BORDELON was assigned to transport

Timothy Foxworth, Billy Nolan, Cedric Pellerin, Orvel P. Hale, and Kyle Denson

to ENI’s Vermilion 313-C unmanned fixed offshore platform.

16. At all relevant times, the M/V WES BORDELON was to provide marine

transportation and vessel support services to allow Timothy Foxworth, Billy


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Nolan, Cedric Pellerin, Orvel P. Hale, and Kyle Denson to be safely transferred

from the M/V WES BORDELON to the ENI Vermilion 313-C fixed offshore

platform.

17. At all relevant times, Billy Nolan, by use of a swing rope, transferred from the

M/V WES BORDELON to the ENI Vermilion 313-C fixed offshore platform.

18. At all relevant times, Billy Nolan was the crane operator conducting the personnel

basket transfer lift of Timothy Foxworth, Cedric Pellerin, Orvel P. Hale, and Kyle

Denson from the stern deck of the M/V WES BORDELON to the ENI Vermilion

313-C fixed unmanned offshore platform.

19. At all relevant times, a banksman was not located on the ENI Vermilion 313-C

platform during the personnel basket lift transfer.

20. Orvel P. Hale’s employer, Oceaneering International, Inc., has paid LHWCA

benefits to Orvel P. Hale and medical expenses through August 14, 2017 totaling

$72,651.76. (The medical expenses will be updated prior to trial.)

ENI US Operating Co., Inc., Bordelon Marine, LLC and Wood Group PSN, Inc.’s Proposed Stipulations

a) Plaintiff, at all times relevant, became employed with Oceaneering International,

Inc. on 18 May 2013, as a Level I E/C Assistant Technician for the Asset Integrity Division;

b) At all times relevant, and particularly on 3 June 2014, Oceaneering International,

Inc. was working for the account of ENI US Operating Co., Inc. pursuant to a Master Service Agreement (10-0068) dated 1 September 2010, and the scope of work as defined in the 1 February 2014 ENI Blanket Order - 5000003563, to be performed by the Oceaneering Asset Integrity crew (Orvel Hale and Kyle Denson) at the ENI Vermilion 313C fixed platform.


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c) At all times relevant, and particularly on 3 June 2014, Wood Group PSN, Inc. was working for the account of ENI US Operating Co., Inc. pursuant to a Master Service Agreement (13-0019) effective 30 July 2013.

d) At all

case 6:15-cv-01803-cbw document 131 filed 01/30/18 page 1 of … · 2018. 2. 23. · calderera v....

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