Seaman’s Minor Injury Results in Big Time Award
Compensation Made For ‘Anguish’ Of Lost Career
By Eric T. Berkman
Massachusetts Lawyers Weekly
February 16, 1998
Loss of limb. Permanent paralysis. Brain damage. Death. Those are the images generally conjured up by news of a multi-million-dollar verdict.
But mental anguish?
That may not be the kind of thing typically associated with a huge recovery.
However, Boston admiralty lawyer Michael B. Latti and his daughter Carolyn will tell you that the psychological and emotional torment of losing one’s life work can be devastating enough to prompt even the stingiest jurors to go for the financial jugular. That’s what happened last year when the Lattis represented a tanker captain who incurred a relatively minor shoulder injury that put an end to his sea-going career.
“Work is always put forth by every psychiatrist as one of the top motivating factors in life,” says Michael Latti. “I’ve always spent a lot of time on people’s work and inability [to continue working]. … The inability to do [what someone loves] destroys a human being.” This is particularly true with a seaman, Carolyn Latti adds.
“Work defines who he is and it defined who [our client] was,” she says. “It was his whole family tradition — his whole family had been seamen.”
Riding The Tide
The Lattis’ client, plaintiff Eric Wilson, was a 33-year-old chief mate on the “Overseas Boston,” a 900-foot oil tanker owned by defendant Maritime Overseas Corp.
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. However, he experienced back pain whenever he performed seaman’s duties like lifting heavy objects and climbing ladders.
Several months later, the plaintiff was promoted to captain, achieving the culmination of a lifelong dream.
“He had been groomed as a sea captain from childhood,” notes Michael 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 the plaintiff 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 now expected to perform physical duties in addition to the administrative duties of a captain.
“This was probably one of the shortest commands on record,” Latti states. “They did not really try to work with him — they just bumped him right off of that ship … He came home a broken man.” In November 1996, when the plaintiff attempted to renew his captain’s license with the U.S. Coast Guard, he learned that a captain was now required 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 a captain and live his dream,” says Latti. The plaintiff hired the Lattis to file suit under the Jones Act, which permits seagoing employees to sue their employers for torts committed at sea. The suit — filed in U.S. District Court in Boston — also included an unseaworthiness claim under the General Maritime Law.
Blown Off Course
From the outset, the Lattis were very concerned about their ability to show that the defendant actually did anything wrong to cause the accident.
“We said that the lack of repair and proper maintenance accounted for the reason that he had to be in the tank in the manner in which he was,” says Michael Latti. “But we had a hard time establishing proximate cause. And that was a major defense — that it was a job that was being done all the time in that manner, so why was it unreasonably dangerous this time? [While this time] a wave brought the raft up, that was unforeseeable, they said, and so we did not have proximate cause.
“Carolyn Latti says she overcame this hurdle when — in deposing the defendant — she managed to obtain the ship’s course recorder, which provided a graphic representation of the path of the vessel. “We retained experts out of Maryland — former captains and teachers — who reviewed the course recorder for us,” states Michael Latti. “And at just about the exact time of his accident, there was a little jog — a deviation — which showed us that they had made an unscheduled course change not known to the person in the tank, which caused the wave.
“The defendant’s failure to warn the plaintiff of this deviation prompted an additional theory of liability, the senior Latti notes. “We had just been proceeding on the lack of proper repairs, which forced him into the tank to begin with,” he recalls. “And the procedure is that the captain must sign a tank permit [before anyone can go in]. So everybody, including the captain, knew he was in the tank.”
Adding to the liability case was the fact that this deviation was unnecessary at that particular time, Latti says.
“We showed there was no emergency and no other vessel based on other records in the area that would show up on the radar or the scope or anything else,” he notes. “We believed they made the deviation because they were off-course. And they could have corrected their course at any time. … But they did it while he was in the tank.
“Even more helpful was the fact that both the plaintiff and the ship’s chief engineer had repeatedly requested that the hydraulic lines be prepared while the ship was in port, notes Carolyn Latti. “During the deposition, I handed [the defendants] one of the requests that asked for replacement of the lines,” she remembers. “The man said that this was a ‘wish list’ meaning that they were not going to incur the expense to repair these lines. So right then and there that set the tone.”
Even with liability quite clear, the Lattis still had to overcome the fact that their client’s injury was far from catastrophic. “When I first heard about the case, I wasn’t sure I would take it because he seemed to have at that time minimal damages as far as any physical injury,” says Michael Latti, who has been practicing law for 37 years.
Nonetheless, when the father-daughter duo began to learn more about their client, they started to see more potential in the case.
“As time went on, we learned about his family and his background and about his father and grandfather being in the shipping business, all captains — and how his wife came from a family of captains,” says Michael Latti. “So we started to think of the case as a serious and substantial case, but in the area of mental anguish, anxiety and the inability to ever return to his work.”
The big challenge, however, would be convincing the jury of the magnitude of the psychological torment caused by the plaintiff’s inability to return to sea. Fortunately, says Michael Latti, his client was the perfect man to place before the panel.
“I think that jurors unconsciously love seamen,” he states. “There’s a certain mystique about the sea that people have. So what we tried to do was take our case out of the ordinary whiplash, slip-and-fall or foreign substance case and get the jury to go out to sea with us.
Indeed, the Lattis employ this strategy in many of their maritime cases, Michael Latti notes.
“We have props — we have boats, we have models where the net comes in, and we try to get experts to give the jury the feel of what it’s like to be a captain,” Latti continues. “To get intangible damages, you have to make sure the jurors comprehend them and realize that these damages are probably worse than physical damages as they understand them. So if we lay the proper foundation of the sea and we get at all of the skepticism which people have, I think that’s very significant.
Additionally, jurors appreciate people — like the plaintiff — who work hard to get on with their lives after an injury, he says.
“After he got over his depression, he was trying and trying and finally got a job selling water purification systems,” states Latti. “He said he was going to try and make a go of it because he knew he could not get back to sea. He wants to succeed — just think how he would have been as a captain. And we had a big picture of the ship. You see that ship and you get a feeling like you’re out at sea yourself. You look at it — a captain, being out there all alone with your men and a ship 1,000 feet long.
But the best witness for a mental anguish case — which Latti says he felt fortunate to have in this instance — is a sincere, sympathetic plaintiff.
“Here was a man who was really trying,” Latti remembers. “And he was almost crying when he was talking about how he had worked his way up. He did not cry, but water came and his voice was shaky. You can’t phony that kind of stuff. So that’s where the damages come — when it’s really sincere.”
Carolyn Latti adds that “people can really relate to someone losing their job and having their career taken away.”
Reaping The Rewards
The jurors related well to the plaintiff’s psychological and emotional devastation and — at the conclusion of the trial — they awarded him $2 million, which came to $2.1 million with interest. The newspaper publicity garnered by the case has proved to be a boon to the Lattis’ practice. “All of a sudden, a story appeared in The Boston Globe and we got calls from people with little nicks who wanted to sue for millions of dollars,” says Michael Latti. “Out of all those calls, we didn’t take a single case.”
However, he says a story published in the April 21, 1997 issue of Lawyers Weekly reaped more dividends. “It was very significant because our practice is mostly a referral practice.” Additionally, says Latti, the publicity has made it easier for his firm to settle cases.
“I know it was a major factor in our recent [$1.45-million] settlement of an injured longshoreman’s case,” he maintains. “They were thinking, ‘If Mike can do that with intangible damages, what can he do with this case, where the man had a below-the-knee amputation?’ So I think the aftermath has been very helpful for us and our clients.”