Roger Murray; Elise Murray, husband and wife, Plaintiffs-Appellees,
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.
and Submitted May 10, 2017 Seattle, Washington
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
A. Talmadge (argued), Talmadge/Fitzpatrick/Tribe, Seattle,
Washington; Barbara L. Holland and David H. Smith, Garvey
Schubert Barer, Seattle, Washington; for
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
Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy
Smith, Circuit Judges.
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.
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.
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.
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.
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
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.
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.
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.
Jury Instruction Defining the Turnover Duty Under the Long
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
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, ...