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Murray v. Southern Route Maritime SA

United States Court of Appeals, Ninth Circuit

August 31, 2017

Roger Murray; Elise Murray, husband and wife, Plaintiffs-Appellees,
v.
Southern Route Maritime SA, a Panamanian corporation; Synergy Maritime PVT LTD, an Indian corporation; APL Ireland M/V, IMO number 9260914, her gear, appurtenances, equipment and furniture, in rem, Defendants-Appellants.

          Argued and Submitted May 10, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding D.C. No. 2:12-cv-01854-RSL

          Philip A. Talmadge (argued), Talmadge/Fitzpatrick/Tribe, Seattle, Washington; Barbara L. Holland and David H. Smith, Garvey Schubert Barer, Seattle, Washington; for Defendants-Appellants.

          Howard Mark Goodfriend (argued) and Ian C. Cairns, Seattle, Washington; C. Steven Fury, Francisco A. Duarte, and Scott D. Smith, Fury Duarte P.S., Seattle, Washington; for Plaintiffs-Appellees.

          Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

         SUMMARY[*]

         Labor Law

         The panel affirmed the district court's judgment, after a jury trial, in favor of the plaintiff in an action under the Longshore and Harbor Workers' Compensation Act.

         While working aboard a vessel, the plaintiff, a longshore worker, experienced an electrical shock when a piece of rebar he was holding came into contact with a floodlight provided by the vessel owner. He alleged that the vessel owner had been negligent in turning over the ship with a faulty floodlight.

         The panel held that the district court properly instructed the jury that the vessel owner owed a duty to the plaintiff as a longshore worker to turn over the ship and its equipment in a reasonably safe condition, which necessarily required the vessel owner to take reasonable steps to inspect the ship and equipment before turnover.

         The panel held that the district court did not abuse its discretion in allowing the plaintiff's key scientific expert to describe his theory of electrical injury because the court adequately assessed the reliability of his theory and fulfilled its gatekeeping function under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The district court also did not err in admitting the medical experts' testimony.

         Dissenting in part, Judge Bea concurred in the panel majority opinion's conclusions and reasoning regarding the jury instructions, the scope of the defendants' turnover duty, and the admission of the statements by the plaintiff's medical experts. He dissented from the majority's conclusion that the district court properly admitted the scientific expert's testimony. Judge Bea wrote that because the causal mechanism by which low voltage shocks purportedly cause certain injuries is not understood and because the district court did not evaluate the methodologies used by the expert to identify the posited correlation between low voltage shocks and certain injuries, the district court abused its discretion in admitting the expert's testimony.

          OPINION

          KEOWN, CIRCUIT JUDGE.

         The events underlying this appeal center on Roger Murray, a longshoreman who experienced an electrical shock while working aboard the M/V APL IRELAND, a vessel owned by Southern Route Maritime SA and Synergy Maritime Pvt. Ltd. (collectively, the "vessel owner"). While Murray was descending a ladder and holding a piece of rebar, the rebar came into contact with a floodlight provided by the vessel owner which allowed electrical current to flow through his right arm, across his chest, and out through his left pinky, where it left a visible burn mark. Murray exhibited a range of ailments after the shock, including stuttering, balance and gait problems, and erectile dysfunction.

         Murray sued under the Longshore and Harbor Workers' Compensation Act ("Longshore Act"), 33 U.S.C. § 901 et seq., alleging that the vessel owner had been negligent in turning over the ship with a faulty floodlight. The jury awarded Murray over $3.3 million for his injuries and awarded his wife $270, 000 for loss of consortium. The district court denied the vessel owner's motions for judgment as a matter of law, new trial, and remittitur.

         Unwilling to go down with the ship, the vessel owner appeals, asserting three trial errors-a flawed jury instruction and two errors related to the admission of testimony by Murray's experts. We disagree on all counts. The district court properly instructed the jury that the vessel owner owes a duty to Murray as a longshoreman to turn over the ship and its equipment in a reasonably safe condition, which necessarily requires the vessel owner to take reasonable steps to inspect the ship and equipment before turnover. Further, the court did not abuse its discretion in allowing Murray's key scientific expert to describe his theory of electrical injury because the court adequately assessed the reliability of his theory and fulfilled its gatekeeping function under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Likewise, there was no error in admitting the medical experts' testimony. We affirm.

         Analysis

         I. Jury Instruction Defining the Turnover Duty Under the Long shore Act

         The Longshore Act provides a cause of action to longshoremen against the vessel owner "[i]n the event of injury . . . caused by the negligence of a vessel." 33 U.S.C. § 905(b). Here, Murray claims that the vessel owner breached its duty to turn over the vessel and its equipment in a safe condition.

         At issue is Instruction 14, in which the district court defined the vessel owner's turnover duty:

One of the duties [vessel owners] owe to longshoremen is called "the turnover duty of safe condition." [The vessel owner] ha[s] the duty to use reasonable care to turn over the vessel and its equipment in such condition that an expert and experienced longshoreman would be able, by the exercise of reasonable care, to carry on his work on the vessel with reasonable safety to persons and property. In exercising such reasonable care, ...

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