$22.5 million – Amputation Settlement

Award Amount: $22.5 million

TRIAL REPORT FORMS

Type of action: Admiralty

Injuries alleged: Bilateral above-knee amputation

Tried before judge or jury (or mediation): settled mediation

Amount(specify award or settlement): $22.5 million

Date (of verdict or settlement): February 2023

Attorney for plaintiff(s) and city of office: Carolyn M. Latti, David F. Anderson, Latti & Anderson LLP, Boston, MA

Summary of Case:

Plaintiff, 38 years old,  was standing on the side railing of an empty barge, when a loaded barge alongside it, violently rolled over, capsizing, crushing Plaintiff’s two legs between the barges resulting in bilateral above knee amputation of Plaintiff’s legs.

For several years prior to the incident, Plaintiff worked for Defendant 1 as a mate on its tug/barges that transported materials to and from areas. On the day of the incident,  a tug had transported two barges, tied together side by side to Defendant 2’s facility to load aggregate on both barges and then transport the barges to its intended destination.

In order to load a barge, material was dumped into a hopper that discharged its contents onto a conveyor belt that could be adjusted up down, left and right to load material onto a barge on the water.  Installed on the conveyor belt was a scale that was manufactured and designed by Defendant 3 and 4.   Defendant 5 had sold and installed the scale on the conveyor belt and Defendant 6 worked on the scale after it was installed.

Plaintiff was ordered to load 700 tons of material that day. Plaintiff stopped loading Barge 1 when the stern was slightly awashed and sought help from the Captain on what to do.  After viewing  Barge 1, the Captain instructed Plaintiff to stop loading from the stern, add weight to the bow and work backwards towards stern.  The Captain indicated, if needed,  he would redistribute the load at the Defendant 1’s facility less than half a mile up from where they were.

Plaintiff followed the Captain instructions and loaded the remainder of the Barge 1 from the bow and moved aft toward the middle. When Plaintiff  stopped the conveyor belt and completed loading aggregate onto the Barge 1, the weight scale display indicated that 700 tons of aggregate had been loaded onto Barge 1. The plan was for Plaintiff to remain at the pier and load aggregate onto Barge 2 and then for the Captain to take Barge 1 to Defendant 1’s facility.

The Captain then rotated the barges so that Barge 2 was now alongside the pier with Barge 1 still tied alongside to Barge 2. The Captain then instructed the Plaintiff to disconnect the lines securing Barge 1 to Barge 2.   Then the Captain proceeded to move Barge 1 away from Barge 2.  However,  the Captain noticed that Barge 1 was listing and he then proceeded to move Barge 1 back to Barge 2 and ordered Plaintiff to try to attach a line from Barge 1 to Barge 2.  Plaintiff was unable to attach the line and went to the middle of Barge 1 where  he turned around and was hit hard from behind. The Plaintiff remembers screaming, being lifted in the air, falling to the deck, and that his legs would not move.  The Plaintiff dragged himself backward on the deck and grabbed onto a ladder rung in order to not fall into the water.  The captain was able to put a tourniquet on each leg until medical attention arrived.

It was determined very soon after the incident through inspection and testing of the conveyor belt and scale, that the scale weight displayed was approximately 20% less than the actual weight of the aggregate loaded onto the barge and that on the date of the incident, 840 tons had been loaded onto Barge 1 rather than the scale reported of 700 tons.

Defendant 2 has admitted that prior to the incident, it was aware that the scale was not providing accurate weight of product loaded but failed to notify Defendant 1 or any of its customers.

Liability against Defendants 2-6 focused on that the scale system was not properly installed, calibrated, tested, maintained and repaired.  Specifically, that the scale was defective in that it was not recording or displaying the total weight of aggregate being discharged onto the belt. Despite Defendant 2 notifying Defendants 3-6 that scale was malfunctioning, attempts  by Defendants 3-6 to repair and fix the malfunctioning scale were not successful. In regards to installation of the scale, Plaintiff claimed that the Defendants 3-5 were negligent in set up and calibration, including Defendant 5’s failure to remove the shipping bolts that were left on the scale that affected the scales ability to properly weigh items on the conveyor belt.

Negligence claims against Defendant 3-5 also focused on that despite knowing that the conveyor would be continuously raised and lowered when loading Barges, the scale failed to include an inclinometer module.  An inclinometer module is a device that measures and the angle of the belt so as to provide consistently accurate weight measurements as the conveyor is raised and lowered to accommodate different size vessels and tidal conditions.  With no inclinometer module, weight readings displayed by the scale would always be inaccurate unless the angle of the conveyor was moved to the same angle in which the scale had been calibrated.

After briefing the issue, the Court allowed Plaintiff to amend his complaint to allow punitive damages against Defendant 2.  Plaintiff contended that Defendant 2 engaged in willful, wanton, reckless conduct in that it knew that the scale was defective in that it consistently under-weighed aggregate, took no steps to alert its customers it was consistently under-weighing materials despite Defendant 2 knowing Defendant 1 used the scale to determine if their vessels were accurately loaded.

Liability against Defendant 1, the owner of the Barge and employer was based on negligence and unseaworthiness in that a cause of the capsizing of Barge 1 was that the barge had dozens of cracks/holes on its main deck which allowed water to accumulate within each of her below deck compartments and Barge 1 lacked any bilge alarms or other devices through which Defendant 1 could monitor or assess the amount of water within her below deck compartments.  Additionally, Barge 1 lacked load lines or similar hull marking from which the Captain and/or crew could quickly and easily assess whether the Barge was overloaded.

It was Plaintiff’s position that there was no contributory negligence since the Captain testified that Plaintiff did not do anything wrong that day to cause the capsizing of the Barge and his injury and that the Captain, would have never have moved the Barges if he thought it was dangerous or unsafe.

Plaintiff had a total of 8 surgeries which resulted in bilateral amputations above the knees.   Pain has been and will be a constant in Plaintiff’s life.  Plaintiff has been diagnosed with PTSD, anxiety and depression and experiences continuous flashbacks of the event.

At the time of his injury, the Plaintiff was 38 years old healthy married man, very active, loved the outdoors and working and being on the water. For about five years prior to his injury, the Plaintiff had worked as a deckhand on tugs and Barges and his goal was to become a Captain and was working to achieve his captain’s license.   Plaintiff’s ability to work was disputed with Defendants claiming Plaintiff, college educated, could work full time earning same income, particularly at a job from home.

The case involved multiple legal issues involving maritime and state claims.  Lawsuits were filed in both state and federal court against the Defendant. After many motions on the use of supplemental jurisdiction and procedural issues, the case against all Defendants proceeded in the Federal Court.

Over 30 depositions were taken in the case, multiple inspections and testing of the conveyor belt and scale.  Mediation occurred before the designation of expert testimony.   Prior to the mediation, Plaintiff provided Defendants with life care plan with present value at $8.9 million.

Case resolved for $22.5 million after two days of mediation solely with the Defendants and two days with Plaintiff and all Defendants.