The Top Jury Verdicts of 2001, #6:
Injury Aboard Ship Leads To Admiralty Verdict
Case Turned On Critical Internal Company E-Mail
By Marissa Yaremich
Massachusetts Lawyers Weekly
January 14, 2002

Related Articles:
May 28, 2001
May 19, 2001

Life at sea is considered one of the most physically grueling and dangerous occupations on earth. The hours are long. The work is tedious. And bad weather can be perilous.

Yet mariners like Carlos Castro still don’t want to do anything else – unless forced to do so.

And that’s exactly what happened to Castro after an unfortunate voyage aboard the S/R Charleston in 1998.

Boston lawyer Carolyn M. Latti first learned of the severe leg injuries that ended Castro’s seafaring career from a financial planner who had been working on Castro’s pension plan from Exxon, the tanker’s parent company.

The federal jury’s $2.8 million damage award in Castro’s admiralty suit, says Latti, proved a point.

“The verdict got people to listen that this case wasn’t as limited in value as they may have thought it was,” she says, noting that the parties later reached an undisclosed settlement after the trial judge overturned the jury award and ordered a new trial on the ground of errors in the jury-selection process.

‘Simple’ Case

David F. Anderson, Latti’s co-counsel, says the case “was phenomenally simple.”

Their client, Castro, had been one of the most experienced maintenance employees, or certified oilers, on the 650-foot tanker, the S/R Charleston, when it encountered bad weather while transporting crude oil from Texas to New York.

During the storm, the boat’s violent rocking caused a wooden wedge to slip out of a metal steel storage rack, sending a half-dozen steel plates to cascade out of the rack and block a passageway near the engine room.

Two days later, on March 3, 1998, Castro, of Wareham, came across fellow oiler, Rigoberto Bonilla, who was busy straightening some of the rack’s metal rods so they could once again be fit into one of the angle iron’s three holes that help secure steel plates when they are placed against the perpendicular wall.

Castro, 51, acquiesced to Bonilla’s request for help to put the steel plates back into the vessel’s storage rack.

As Castro slipped the last steel plate into the rack and Bonilla reached for the rods to secure them, 900 pounds of steel fell on top of Castro, fracturing his tibia and fibia of his left leg and aggravating soft tissue in the leg area as well as his pre-existing arthritis.

Castro was taken to vessel’s hospital, where he remained for a couple of days. When the U.S. Coast Guard was able to make its way through the storm’s residual fog, Castro was taken to a Texas hospital, where he was treated for nearly two weeks.

When he returned to Massachusetts, Castro underwent several surgeries on his knee, including a total knee replacement.

The accident ended the 24-year seagoing career of Castro, who is now forced to rely on a cane to get around.

Credibility Battle

The plaintiff’s lawsuit claimed that there had been an unseaworthy condition that caused permanent damage to Castro’s left leg. The suit also charged Castro’s employer, SeaRiver Maritime, with negligence under the Jones Act, the federal maritime law that allows seamen to sue their employers.

The biggest challenge in the suit was not a medical one, according to the plaintiff’s attorneys. It was convincing the jury that the plaintiff was telling the truth about events surrounding the incident.

“A piece of equipment [on the vessel] broke [and] the chief engineer was responsible for the safety of the crew members, but he never personally fixed the equipment and he never gave any orders to fix it,” says Anderson.

The plaintiff’s co-worker, Bonilla, stated in a deposition that if the pair “knew what was going to happen” they “would have never done it.” Rather, says Anderson, they would have left the work up to the ship’s chief engineer.

Although one officer testified that he noticed the fallen steel plates and notified the chief engineer of the potential hazard, the defense claimed that the engineer was unaware of any warning.

According to Anderson, the case was complicated by the need to examine the general rules and procedures of a vessel, especially since there had been no formal procedure articulating how a crew member should have addressed the particular problem.

“Fundamentally, however, it came down to a credibility contest,” says Anderson, noting that the tanker’s chief engineer was well-educated and polished.

The plaintiff, on the other hand, was a maintenance man.

“Castro’s no fool,” says Anderson, “but he was the Q-med oiler with an 8th-grade education.”

During discovery, Latti says, her suspicions were aroused upon learning that the chief engineer had conducted the entire accident investigation himself – and had been the one to convince Castro to sign a statement absolving the chief officer of wrongdoing.

The plaintiff claimed that he had been deceived into signing that statement.

“Here is [the plaintiff] with a broken leg and in horrible pain with medication in him, and the chief engineer starts interviewing him on how the accident happened,” notes Latti. “This went into our whole theme that [the defendant] basically had a setup [plan] because they have these statements that don’t reflect what the witnesses say.”

Crucial E-Mail

The plaintiff’s case was helped by the discovery of an internal company e-mail written several years earlier setting forth an apparent policy ordering superior officers to contact the company’s in-house counsel immediately in the event of an accident and instructing such officers not to take photographs of the scene unless all defective or dangerous items or liquids had been removed from the area.

It was a challenge for the plaintiff’s counsel, however, to get the e-mail – which had been given to them secretly – admitted into evidence, as the document’s origins could not easily be authenticated.

The chief engineer, however, himself verified the e-mail had been sent, Anderson notes, while being questioned about a series of sketches that were allegedly drawn a day after the accident.

The plaintiff’s lawyers say the chief engineer’s actions with respect to taking photographs and contacting the company lawyer were consistent with the instructions set forth in the e-mail.

“If we could date the photographs, we figured we could date [the chief engineer] talking to the lawyer,” says Anderson. “If he did it before he talked to Castro then – surprise, suprise – he’s got the perfect legal case in Castro’s statement. He absolutely denied ever talking to the lawyer, but we could prove through this e-mail that, if he took the photographs [immediately after the accident], he talked to the lawyer [before interviewing the plaintiff].”

A ‘Valued’ Employee

The defendant claimed that, while the plaintiff was a “valued” employee, he “[u]nfortunately …suffered a preventable injury by his own actions.”

Latti says that the defense may have made a mistake by insisting that the shipping company had not been negligent at all.

“They could have concentrated more on contributory negligence and medical causation,” she states.

Although the defendant’s medical expert, a knee-replacement surgeon, had impressive credentials, the plaintiff’s lawyers say the expert may not have won over jurors.

Indeed, according to Latti, the doctor during his testimony stated that “nurses don’t know anything” – a comment that probably was not well-received by one juror who was herself a nurse.

The defense expert also “insulted” the plaintiff because of his weight, despite the fact that there were two “heavy people” on the jury, Latti says.

Overall, according to Anderson, the defense “tried too hard to have the perfect case instead of a good case, and lost credibility as a result.”

“They wanted to blow us out of the water,” Latti agrees.

Latti and Anderson say they avoided an overly technical presentation of evidence and used a limited amount of witnesses.

The plaintiff’s own testimony was particularly helpful in a case that came down to credibility.

“His simplicity showed his truthfulness,” says Latti.

Jury-Selection Error

When the jury foreman finished reading the verdict, Latti could barely control her wavering pen as she wrote the final numbers down.

The jury awarded the plaintiff $1.2 million for lost wages and another $1.6 million for past and future suffering.

“If you look at the verdict sheet, the numbers are all crooked and I couldn’t add the numbers,” she says. “It was unbelievable.”

But the jury’s award proved to be short-lived.

U.S. District Court Judge George A. O’Toole Jr. found that the jury selection had been flawed because the defense had wrongly been denied the right to use their three peremptory challenges.

O’Toole threw out the verdict and ordered a new trial.

Despite O’Toole’s ruling, the plaintiff’s attorneys seem satisfied that their client was able receive some type of financial compensation in the confidential settlement that followed.

“There comes a time when you have to weigh the pros and cons of a situation,” Latti says of the settlement.