$2M Verdict For Sea Captain With 'Minor' Shoulder Injury
By Eric T. Berkman
Massachusetts Lawyers Weekly
April 21, 1997
Can a plaintiff who suffered only minor physical injuries in an oil-tanker accident nonetheless recover for mental anguish, including so-called "intangible" damages?
A recent $2 million dollar jury verdict in the U.S. District Court recovered by a tanker captain who sued a shipping company indicates that the answer is yes.
The plaintiff captain, who lost his command and the ability to sail after suffering a shoulder injury on an unseaworthy vessel, staked his claim on the mental anguish he suffered when he could no longer pursue his chosen career.
Although his injury quickly healed, the plaintiff could no longer perform seaman's duties like climbing ladders and lifting heavy objects -- duties that one must be able to perform to maintain a captain's license or to sail for recreation.
The jury verdict apparently included at least $500,000 for "intangible damages."
The defendant shipping company contended that because the plaintiff's physical injury was relatively minor, so must have been his mental anguish.
But by focusing on his client's unique love of his work, plaintiff's counsel Michael B. Latti of Boston convinced the jury that the plaintiff -- who had been groomed as a sea captain since childhood -- was thoroughly shattered by his inability to sail.
"I think the jury realized that he'd never adjust based on his personality and background and because of his 33 or 34 years spent on the sea," explained Latti, who tried the case with his daughter Carolyn M. Latti, also a Boston attorney. "The idea that he loved the sea, found the work he loved, went in to achieve and made it -- that was severed, so he lost the work and the recreation and sport he loved all his life."
Tort lawyers told Lawyers Weekly that the chances of convincing juries to award substantial damages in these types of cases could be maximized by:
- working with the plaintiff to project honesty and sincerity on the witness stand;
- not "overplaying" the damages;
- seeking out an empathetic, decisive jury;
- and avoiding an "overkill"of too many experts.
The case, Wilson v. Maritime Overseas Corp., et al., appears in the Trial Reports section of this week's issue of Lawyers Weekly.
Content Of Their Character
In cases like the "sea captain" case -- which do not involve severe physical injuries -- the character of the client is crucial, said Boston lawyer John W. Brister.
"The fact that the jury empathizes with and likes your client is almost more important than the actual damages," Brister explained. "You don't want to have a client who appears to be either malingering or exaggerating his injury or looking for sympathy."
If a plaintiff with serious physical injuries gets on the stand and acts like a "crybaby," added Brister, "you may not get as much as someone who has demonstrated that he is intent on getting his life back together and doing his best to go back to work -- even if it's not what he was able to do before the accident."
Latti agreed.
"I realized from the beginning that if ... the jury believed my client, there would be a substantial verdict, because he just projected so much in terms of honesty and sincerity and of a very sensitive person who'd worked very hard to get where he was at a very early age," said Latti, noting that the damages aspect of his case consisted almost entirely of the plaintiff's testimony and his closing argument.
"If you have a plaintiff who projects honesty and sincerity concerning intangible damages," said Latti, "the award by a jury can certainly be as substantial as where you have catastrophic physical injuries. I've had cases where people have lost an arm or a leg where a jury has come in with substantially less [than in this case]."
Latti also pointed out that while he usually spends two or three days preparing a plaintiff for direct examination, in this case he spent six.
"I think it takes a lot more work to focus in on the best evidence in these kinds of cases," Latti explained. "There was so much involved in trying to cull out what was important and trying to emphasize the two major incidents of the case -- the plaintiff being relieved of his command and then not being able to renew his license."
Sharon lawyer Howard S. Ross, who has represented plaintiffs in intangible damages cases, stressed that the plaintiff's testimony is the most crucial evidence in these actions. Nonetheless, he recommended that plaintiffs' attorneys set the stage for such testimony by calling witnesses with no pecuniary stake in the litigation.
"I personally like to derive testimony about how [the plaintiff's] life has been affected from people who have no financial interest in the outcome," Ross stated. "They could be co-workers, friends or health care professionals ... the plaintiff is obviously the central actor and the key, but plaintiffs also have the greatest potential of losing or minimizing their damages, especially if they are dishonest or overreaching in their damages."
Reaching The Jury
In his summation, Latti aimed to make the jury understand just how much his client's vocation meant to him.
"I tried to concentrate in my closing argument about work and how important it is to some of us in life," he recalled. "If you love your work, it ranks right up at the top of everything, next to your family... So I tried to bring home to the jury the point that there could be no greater loss -- next to the loss of a family member - than work for most of us. And it was obvious from seeing my client testify how much he loved his work and what it meant to him.
Nonetheless Latti acknowledged that he benefitted from the jury's makeup.
"If you have a sophisticated jury, and certainly we did in a federal court -- if they believe your plaintiff, they'll make a substantial award for nonphysical damages the same as they do for physical," Latti explained.
Noting that jury members included a schoolteacher, a banker and an air traffic controller, Latti contended that someone who is "a decisive kind of person from the nature of their work" is someone who will award substantial damages when they believe the plaintiff.
Latti pointed out that many plaintiffs' lawyers shy away from "sophisticated" jurors and look instead for the "working-man" type of juror -- a "laborer" with limited education.
"But I think in this kind of damages case, you want to find the reverse," Latti stated. "You want to find well-educated people -- people who have reached a position in society where they are a manager or are in one of the different professions."
At the same time, Ross added, a plaintiff's lawyer should seek a jury consisting of "people who can empathize with other human beings and treat them fairly."
Avoiding Overkill
In plotting his trial strategy, Latti focused on keeping things simple and manageable.
"I think many of us make the mistake of overkill -- putting on too many experts," said Latti, who relied strictly on his client's testimony to show mental damages and the treating physician's testimony to show physical damages. "If you have a plaintiff like mine who projects and is believable, you should spend your time working with the plaintiff in preparation."
Latti also advised lawyers to "concentrate on your argument concerning the intangibles and try to make everyday analogies to the jurors about work, hobbies and that kind of thing."
By following this advice, Latti said he was able to keep the jury from being "turned off with too much testimony and too many experts -- and we all make those mistakes in these kind of cases."
Shattered Dream
Latti's client, plaintiff Eric Wilson, was a 33 year-old chief mate on "Overseas Boston," a 900-foot oil tanker owned by defendant Maritime Overseas Corporation.
On Jan. 19, 1994, the plaintiff was on an inflatable raft inside a water-filled cargo tank, repairing his ship's hydraulic lines. A wave suddenly developed inside the tank and pushed the plaintiff upwards into a deck beam, causing a mild compression fracture between his shoulder blades.
Approximately a year later, the fracture had healed and the plaintiff returned to work on the vessel. Whenever he performed seaman's duties like lifting heavy objects and climbing ladders, he experienced back pain.
Several months later, Latti was promoted to captain, achieving what Latti termed the culmination of his lifelong dream.
"[The plaintiff] had been groomed as a sea captain from childhood," said Latti. "His ancestors were sea captains dating back to the China trade in the 1840's."
Before sailing, however, the defendant asked for a duty status report from the plaintiff's treating physician. The report, which stated that he was capable of doing administrative and captain duties, was faxed to the defendant before the plaintiff left to join the ship.
When the plaintiff reported for duty, he went through a change of command ceremony with the ship's officers and crew. Several hours later, however, the defendant relieved the plaintiff of his command because the plaintiff was expected to perform physical duties in addition to administrative/captain's duties.
"This was probably one of the shortest commands on record," said Latti.
In November 1996, when the plaintiff attempted to renew his captain's license that had been issued by the U.S. Coast Guard, he learned a captain was now required to be able to perform all duties, including those of an able-bodied seaman.
"It was at this time that [the plaintiff] realized he would never return to sea as captain and live his dream," Latti stated, noting that the plaintiff had to take a job as a water purification equipment salesman.
Pursuant to the Jones Act, which enables seagoing employees to sue their employers for torts committed at sea, the plaintiff filed a negligence action in U.S. District Court. The plaintiff also filed an unseaworthiness claim under the General Maritime Law.
Once the plaintiff established the defendant's fault at trial, he emphasized the intangible damages -- such as loss of enjoyment of activities, hobbies and work -- which he suffered as a result of being unable to sail.
The jury handed down a $2 million dollar verdict -- $750,000 for past pain and suffering and past lost wages.
"Since [the plaintiff's] past net lost wage claim was only for $200,000, the remaining $550,000 had to be for [the plaintiff's] pain and suffering," Latti explained. "Because there was no substantial physical injury or suffering, at least $500,000 awarded had to be for his mental anguish."
