Pain and Suffering Hard to Prove
Massachusetts Lawyers Weekly
By Barbara Rabinovitz
They are known as merchant seamen — the mates, engineers, captains and others who labor on the large commercial vessels that ply the world’s high seas.
Rarely is there a female among them, but in the summer of 2005 there was a “woman merchant seaman,” as a Boston plaintiffs’ attorney describes her client, aboard a vessel owned by a major shipping corporation, which would later be named by that client as the defendant in her case.
Licensed as a third assistant engineer, the 24-year-old woman was responsible for a weekly safety inspection of the ship’s bilge alarm, which would indicate whether water was leaking into the centerline tunnel, a 400-foot stretch of low-ceilinged space containing a tangle of steam pipes and electrical and hydraulic lines.
As the woman was climbing a ladder on the ship’s starboard side to test the alarm one August day that summer, the boat took a roll and a wave of boiling hot water (212 degrees is considered to be boiling) splashed down on her. She tried to escape, but still more of the scalding liquid, which had collected in the small compartment she had been inspecting, came cascading down her back.
The woman’s entire backside, from her shoulders to her feet, and both her arms and the fronts of her legs were covered with second- and third-degree burns — 60 to 70 percent of her body, according to her attorney, maritime-law practitioner Carolyn M. Latti.
One might expect that the extent of the injuries suffered by this relatively young woman would make for brief negotiations and a quick agreement between her lawyers and defense counsel.
Not so, says Latti.
For one, even though her client had been severely burned, Latti faced the challenge of proving pain-and-suffering damages because the woman, as part of her treatment, had been put in a medically induced coma and given heavy pain medication.
Also, her client’s strong recovery and return to gainful employment were evidence of progress that the defense attorney (whom Latti declines to name, citing terms of the settlement) “was using to his advantage … to minimize what [the plaintiff] went through and what she’ll go through in the future.”
While Latti believes that the liability of the defendant was “very strong,” this contest between a mighty shipping corporation and a lowly shipmate was, as her partner David F. Anderson observes, “sort of an odd case,” one with a conclusion that had been anything but certain during the prolonged attorney rivalry.
But after four months of settlement discussions, which included two failed attempts at mediation, the shipping company finally agreed to pay the woman $4.5 million — only days before the case was to be tried late last month.
‘Skin coming off in sheets’
After testing the bilge alarm in the aft section of the tunnel and determining there was no water in the pipeline, the young woman bobbed and weaved her way through the long, narrow space to the fore section and ascended a ladder to a small compartment, known as the escape-trunk area, to conduct a similar inspection.
“It was fine on the port side,” Latti says, but then came the gush of boiling water as the woman was about to enter the compartment of the starboard side.
“As she testified in her deposition,” Latti continues, “she could feel her skin peeling off her. She realized, from her first-aid training, that she had to take off her clothing. She ended up ripping off her clothes and then proceeded to run through that pipe tunnel. … Her skin was just coming off in sheets.”
Latti says her client passed through the 400-foot tunnel and climbed a 20-foot ladder, “pieces of skin hanging onto the rungs of the ladder.” When she reached the engine room, a crew member administered medical treatment.
A priority in treating burn victims is to start fluids immediately, Latti says, “because the person is losing an incredible amount of water. … [Crew members] were trying to keep her hydrated with an IV line, but her body was swelling so [much], the IV kept popping out.”
Twelve hours elapsed before the ship’s owner was able to airlift the woman from the vessel to a hospital in a country Latti declines to name, again because of the confidentiality agreement. A couple of days later, the woman was flown to Boston in an air ambulance and was admitted to Massachusetts General Hospital. She spent six weeks under the treatment of MGH doctors and physicians from the nearby Shriner’s Burns Unit.
“Because of her burns, they put her in a medically induced coma” to alleviate the extreme pain associated with such injuries, Latti says. “She had three surgeries, and the doctors, using [a surgical instrument] almost like a vegetable peeler, were taking off the dead skin. She also had to have skin grafts, some with pigskin and some with her own skin. When you do skin grafts, it causes further scarring; pigskin helps cover the skin so it will heal and grow back — kind of like a human dressing.”
From MGH, the woman was transferred the few blocks to the Spaulding Rehabilitation Hospital where she spent 10 days before returning to her home in early October 2005.
‘Maintenance and cure’
Despite requiring an additional four surgeries and intensive physical and occupational therapy, “she had a tremendous recovery,” Latti says of her client.
By February of this year, the young woman was employed again, this time as a mechanical engineer for a medical-device manufacturer, repairing robots that do the manufacturing.
“Her limitations are basically that she always has to be covered up because she can’t be exposed to the sun,” Latti says. “Also, having been burned over such a large percent of her body affects her ability to sweat, so she has to be in an air-conditioned environment.”
A return to her seafaring job was not possible because the temperature in the engine room where a ship’s boilers are located can reach as high as 110 to 115 degrees, Latti notes.
“So part of the damages was a lost-wage component, [reflecting] what she should have made returning to shipping versus what she makes now,” the lawyer says. “The other component was pain and suffering and physical disfigurement.”
Before the lawyers began the protracted negotiations over damages, they took up the issue of the woman’s medical bills and living expenses.
Under maritime law, if an employee is injured on the job, the employer is responsible for “maintenance and cure,” an employment-law concept dating back centuries, Anderson explains. It requires the employer to pay the worker’s medical bills until she reaches a maximum medical improvement, classified as “cure,” and a daily stipend of $8 a day, considered “maintenance.”
“It’s a very old concept that the ship owner is responsible for taking care of an injured or ill seaman,” he says.
The woman’s medical bills and her living allowance, which together totaled nearly $700,000, according to Latti, were paid by the shipping company prior to the settlement.
Although a merchant seaman, or seawoman as in this case, who is hurt while on duty is not entitled to workers’ compensation, she can sue her employer under the Jones Act, which, as Latti says, “provides a negligence cause of action for seamen injured during the course of employment.” Thus began the back-and-forth about damages.
“Boiling water accumulating in a hatch area that injures a crew member — that’s a very strong unseaworthiness case,” Latti contends. “Then we were able to show through depositions of various crew members and were able to establish that [the senior officers] had knowledge that water was accumulating. They had actually drilled holes in that area to let the water drain into the pipe tunnel, but the holes would fill up with gunk.”
That lapse in maintenance allowed the plaintiff’s team to establish negligence — that “they never took proper measures to find the source of the water and get rid of the water,” says Latti. “Senior officers were all like, ‘Everything is fine.’ The junior officers said they told the senior officers of the problem but that they were told, ‘We have bigger issues to deal with.'”
More challenging for the plaintiff’s counsel was their attempt to obtain testimony from doctors — about how much pain the patient endured while comatose — and from the woman herself about whether her life had been adversely affected by her injuries.
As Anderson recalls: “Within two hours [of the accident], she was jacked up on morphine; within 12 hours, she was heavily sedated; and for the next several weeks, she was in a coma. So the question was: How much physical pain was she in?”
The treating physician was of the opinion she could still feel the pain, and nurses’ notes indicated that, while the woman was comatose, “there would be instances where she would grimace,” Latti says.
To overcome the hurdle of conveying to a jury the extent of the woman’s pain and suffering, Latti relied on her client’s gut-wrenching account, offered during the second mediation, of “how bad things are, about what her day is like and about people’s reaction to her burns.”
Latti goes on: “We were able to get her to talk about when she gets up in the morning, she doesn’t want to look in the mirror, and about when she gets in the shower and the water is going down her skin. … And she talked about going to a social function and having to have her hand stamped, and the bouncer would comment on her scars.”
Adding to the challenge for the lawyers was their client’s mental outlook. “She’s a wonderful, upbeat, highly motivated person,” Latti says. “The majority of people who would go through this would go through depression, post-traumatic stress disorder, anxiety. … Our client basically said, ‘I accept this, and I’m going to move on.'”
In the belief that the defendant’s lawyer was using the plaintiff’s positive attitude to his advantage and uncertain about the jury’s possible reaction to that tactic, Latti and Anderson set about polling people they know informally for their views on what the case might be worth.
“The case was difficult to value,” Anderson says, “because the medical bills were paid [and] the wage loss became increasingly insignificant. So what we were left with was: What’s it worth to go through your life with significant burn injuries?”
They talked to about 50 people, avoiding other lawyers “because they’re typically not on juries,” Anderson says. “We do this [informal survey] in many of the more important cases.”
The responses, he and Latti discovered, varied greatly between men and women as did the dollar numbers.
“Men tended to focus more on ability to work, on function, and were less attuned to self-image issues,” Anderson says. “Women tended to focus on looks, [on] how was she going to date; how was she going to marry; what is she going to miss out on.”
With a trial set to begin on Sept. 24, on Sept. 20 the parties agreed on $4.5 million for the woman.
“She was very pleased with it, and we were very pleased with it,” Latti says. “She was clearly injured, and so it was good to have such a good result and to know she is taken care of for life.”