Opinion
Civil Action No. 00-1815, Section "T" (2)
February 19, 2003
ORDER
Before the court is a Motion to Amend Judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure submitted by Plaintiffs, Dafydd Hoffman and Andrew Mariano. The Court, having heard the arguments of the parties at hearing, having considered the record, the evidence, the applicable law, and the memoranda submitted by the parties, is now ready to rule.
Previous Procedure
This cause came for bench trial on a previous date between the Plaintiffs, Dafydd Hoffman and Andrew Mariano, and the Defendants, Halcot Shipping Corp. and Zodiac Maritime Agencies, Ltd. ("Halcot" and "Zodiac") for damages that Hoffman and Mariano allegedly sustained on February 26, 1999. Prior to trial, Stolt Parcel Tankers, Inc. was dismissed and the claim of plaintiff Matthew Stann was settled, and has since been dismissed. Prior to trial, the future loss of earnings capacity claim of plaintiff, Dafydd Hoffman, was withdrawn. At the outset of the trial, the parties stipulated that should liability be found, the alleged past lost wage claims of Hoffman and Mariano are agreed upon. The parties had also stipulated that, on the night of February 26, 1999, the M/T HYDE PARK collided with barges in tow of the M/V HERMAN POTT and thereafter, the HYDE PARK and one or more breakaway barges struck the Port Ship Service facility. The Court, having heard the testimony at trial and having considered the record, the evidence, the applicable law, and the memoranda submitted by the parties, made the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law was deemed to be a finding of fact, it was adopted as such; and likewise, any finding of fact that was deemed to be a conclusion of law was so adopted.
FINDINGS OF FACT FOLLOWING THE BENCH TRIAL
With regard to the Court's factual findings, if no exhibit is specifically referenced, that particular finding was based upon the testimony given by various witnesses at trial.
1. Plaintiffs, Dafydd Hoffman and Andrew Mariano, were launch operators at Port Ship Service, Inc. in Arabi, Louisiana on February 26, 1999, the date of the casualty that gave rise to this litigation.
2. Port Ship Service, at all material times, operated a launch or water taxi service on the east bank of the Mississippi River at Arabi, Louisiana and was the employer of the plaintiffs herein. Port Ship is not a party to this litigation.
3. The M/T HYDE PARK, an oceangoing tanker, at all material times, was owned by Halcot and managed by Zodiac. Prior to the casualty of February 26, 1999, the HYDE PARK had been at anchor in the New Orleans General Anchorage, in the Mississippi River.
The Casualty
4. At about 11:00 p.m. on the evening of February 26, 1999, the HYDE PARK, after getting underway from the anchorage, collided with barges in tow of the M/V HERMAN POTT. The HYDE PARK and one or more barges that had broken loose from the HERMAN POTT flotilla while coming down river and struck the Port Service launch facility.
5. Before the casualty occurred on the evening of February 26, 1999, three vessels were moored at Port Ship Service: the launches LITTLE RAY and MISS LESLIE and the stores boat MISS RAE ANNE. These three vessels were all secured to a mooring barge that, in turn, was secured to the Port Ship dock.
6. The Mississippi River, on the day of the HYDE PARK casualty, was at a high stage and there was a strong current. The U.S. Army Corps of Engineers records for the period in question reflect that the river was at a height of THIRTEEN (13) feet on the Carrolton gauge at New Orleans, which would produce a current surface velocity of FIVE-point-FIVE (5.5) miles per hour.
7. The launch LITTLE RAY, at the upper end of the mooring barge, was secured with a single line leading from the boat to mooring bits on the barge. A loop on the end of the line had been thrown over the barge bitts to secure the boat. The launch MISS LESLIE was moored astern the LITTLE RAY towards the lower end of the barge in a similar fashion, that is, with a single line leading from the boat to the barge bitts. Testimony of Dafydd Hoffman and Jeremiah Arabie.
8. The stores boat MISS RAE ANNE was secured to the stern or down river end of the barge by means of two lines (one on each side) running forward on each side of her bow to a set of bitts on the barge. Testimony of Andrew Mariano and Jeremiah Arabie.
9. Matthew Stann, the Port Ship Service dispatcher, heard the radio traffic in the dock office suggesting that there had been a collision upriver and a ship and several barges were heading down river. He notified the company owners, Rod and Ray Willhoft, and instructed launch operators Hoffman and Mariano to go to their boats and try to move them into the river in order to avoid possible damage. Testimony of Hoffman and Mariano.
10. The only other Port Ship employee at the facility that evening, besides Hoffman, Mariano and Stann, was Jeremiah Arabie, a deckhand. Although the evening shift normally had two deckhands (one for each launch boat), neither of the two assigned deckhands showed up for work that evening making it necessary for the dispatcher to ask Port Ship's Poydras facility to send a deckhand up to assist. That deckhand was Mr. Arabie. Testimony of Hoffman and Arabie.
Claims of Plaintiff Dafydd Hoffman
11. Hoffman, followed by deckhand Arabie, ran out of the dock office and down a set of stairs leading to the mooring barge, followed by Mariano. Hoffman jumped aboard his launch, the LITTLE RAY, started her engines, and was cast off from the dock by Arabie, who threw the line off the barge bitts after Hoffman came ahead on his engines, thus putting slack in the mooring lines. Testimony of Hoffman and Arabie.
12. Hoffman testified that the LITTLE RAY (48 feet in length and weighing in excess of 26 tons) would put a heavy strain on her mooring line in the high river and strong current, and in order to get her underway, the engines would have to be put in gear, and the deckhand assist. Testimony of Hoffman.
13. Hoffman successfully moved the LITTLE RAY out into the river, and away from the Port Ship Service dock, in order to avoid a possible collision with the southbound HYDE PARK and several breakaway barges. After maneuvering away from the dock, however, the LITTLE RAY was struck on the starboard side by either the ship or one of the barges.
14. As a result of the LITTLE RAY being struck by either the HYDE PARK or one of the barges, Hoffman was thrown into the console on the dash and out of his seat to the left. Hoffman banged his left knee and twisted it in the process of regaining his chair and gunning the engines in order to avoid the oncoming traffic. Testimony of Hoffman.
15. Hoffman returned to work after his normal three day off period subsequent to the accident. Hoffman's knee worsened, and he saw Dr. George Murphy, orthopaedist, on March 16, 1999. Testimony of Hoffman. An MRI scan was performed which indicated a two centimeter medial meniscus tear, both horizontally and vertically, as well as medial synovial plica and chrondromalacia. Testimony of Dr. George Murphy.
16. Dr. George Murphy, Hoffman's treating physician, and Dr. Charles Murphy, the physician who operated on Hoffman, testified that it was more probable than not that Hoffman's knee injury was caused by the February 26, 1999 incident. Testimony of Dr. Charles Murphy; Testimony of Dr. George Murphy. The Court adopted the testimony of Dr. Charles Murphy and Dr. George Murphy that the knee injury sustained by Hoffman was a direct result and was proximately caused by the stipulated negligence of the defendants.
17. Hoffman underwent arthroscopic surgery performed by Dr. Charles Murphy at Kenner Regional Medical Center on May 18, 2000 to repair the meniscus tear. Testimony of Dr. Charles Murphy.
18. An April 5, 1999 MRI of Hoffman's knee showed arthritic changes. Both of Hoffman's treating physicians, however, admitted that they had no way of determining how long these changes had been present or whether they pre-dated the incident. The possible progression of arthritic changes in the future could not be fairly attributable to the February 26, 1999 incident.
19. Hoffman failed to attend a number of physical therapy sessions as well as post-operative follow-up appointments with Dr. Charles Murphy.
20. Dr. Murphy testified that the May 18, 2000 knee surgery was highly successful. Testimony of Dr. Charles Murphy.
21. Hoffman went back to work as a launch operator at Port Ship. in the summer of 2001, he left Port Ship for employment with E.N. Bisso Son, Inc. as a deckhand on a harbor tug. Testimony of Hoffman. Before starting work at Bisso, Hoffman passed a pre-employment physical.
22. The Court adopted Dr. Charles Murphy's testimony that Hoffman sustained a three percent disability to his entire body.
23. The Court found that Hoffman was entitled to THIRTY-FIVE THOUSAND DOLLARS AND 00/100 ($35,000.00) in general damages as a result of the injury to his knee.
24. Hoffman sustained TWO THOUSAND FIVE HUNDRED NINETY-TWO DOLLARS AND 00/100 ($2,592.00) in stipulated past lost wages as a result of the surgery.
25. Hoffman had suffered any future lost wages as he was then employed at E.N. Bisso Son, Inc. as a deckhand on a harbor tug. The Court found that if Hoffman performs his job well, he may become a tug captain, earning considerably more than he did at Port Ship Service.
26. Hoffman incurred stipulated past medical bills in the amount of TWENTY-ONE THOUSAND THIRTY-EIGHT DOLLARS AND 00/100 ($21,038.00).
Claims of Plaintiff Andrew Mariano
27. Mariano testified that he came down the stairway to the mooring barge, and then boarded his boat, the MISS LESLIE. Mariano attempted to heave in and cast off his boat's single mooring line and injured his right shoulder as well as his back. Testimony of Mariano,
28. Mariano admitted that the usual procedure for untying a boat like his launch, the MISS LESLIE, is for the operator to come ahead on the engines and put slack on the mooring line. However, Mariano pointed out that when Hoffman cranked the engines of the LITTLE RAY, the wheelwash of that boat was coming down on the MISS LESLIE and after Hoffman cranked up, Mariano could not have gone forward because Hoffman's boat was blocking him. Mariano also suggested that if he had a second deckhand, he would have been able to move his boat out that night.
29. On March 9, 1999, Mariano sought medical attention from Dr. Michael Howard at the Health Care Center of St. Bernard for pain in both his neck and shoulder.
30. Although the neck pain eventually improved, the right shoulder continually worsened.
31. After conservative treatment and an MRI of his right shoulder, Mariano was referred to Dr. Ralph Gessner, an orthopedic surgeon.
32. Mariano first saw Dr. Gessner on September 7, 1999. Dr. Gessner read the MRI and determined that Mariano had pre-existing arthritic changes around the humeral head which were asymptomatic prior to the accident. Dr. Gessner also opined that the MRI showed tendinitis, bursitis, and hypertrophy of the acromioclavicular joint which was compatible with impingement syndrome. He also noted a partial tear of the rotator cuff. Testimony of Dr. Ralph Gessner.
33. Mariano underwent surgery in November 1999 where an acromioplasty, an exploration of the rotator cuff, was performed. The supraspinatus tendon and rotator cuff were intact. Bursitis was noted as well as the impingement which was released by shaving the acromion and reattaching the muscles. Testimony of Dr. Ralph Gessner.
34. Both Dr. Howard and Dr. Gessner testified that Mariano's injuries were caused as a result of his unsuccessful attempt to pull slack in the MISS LESLIE's mooring line.
35. The Court found that the negligence of the defendants in allowing the HYDE PARK to lose control and ultimately cause allisions between the ship, barges and the Port Ship Service facility was a cause in fact and a proximate cause of Mariano's injuries.
36. Dr. Gessner testified that Mariano's surgery was successful.
37. The Court adopted the disability ratings of Dr. Ralph Katz who rated Mariano's disability as a 6.25% upper extremity impairment and a 3.75% impairment of the whole person. Dr. Katz based his ratings on the American Medical Association's Guides to Evaluation of Permanent Impairment, Fifth Edition. Testimony of Dr. Ralph Katz. Dr. Gessner conceded that the use of the AMA guide is an appropriate and recognized method for assigning a disability rating. Testimony of Dr. Ralph Gessner.
38. The Court found that Mariano was entitled to TWENTY-FIVE THOUSAND DOLLARS AND 00/100 (S25,000.00) in general damages as a result of the injury to his shoulder.
39. Evidence suggested that Mariano had incurred SEVENTEEN THOUSAND FOUR HUNDRED FORTY-TWO DOLLARS AND 09/100 ($17,442.09) in stipulated medical expenses and THREE THOUSAND NINE HUNDRED SEVENTY-EIGHT DOLLARS AND 00/100 ($3,978.00) in stipulated past lost wages.
40. Dr. Bernard Pettingill testified at trial as to Mariano's loss of earning capacity. The Court concluded that Dr. Pettingill may only testify as to demonstrated loss of earning capacity based upon Mariano's work history, which is the best evidence of future loss of earnings capacity.
41. The only tangible evidence before the Court concerning Mariano's work and earnings history were his Social Security Administration ("SSA") Itemized Statement of Earnings, the payroll records of Port Ship Service, and the testimony of his employer regarding his past overtime history, his promotion to the higher paying job of dispatcher, together with his present opportunity to earn overtime. See Defendants' Exhibits 6, 11, 14, 32, and 37.
42. The evidence demonstrated that, in October 2000, Port Ship promoted Mariano to the position of dispatcher. Further, Mariano's payroll records and SSA Itemized Statement of Earnings conclusively established that he made significantly more money as a dispatcher than he ever made in the past as a launch operator. Defendants' Exhibit 32. Therefore, the Court found that Mariano had no claim for future loss of earnings or loss of earning capacity, especially since his employer testified that Mariano still had an opportunity to earn overtime, either by operating a launch or as a dispatcher.
43. On February 26, 1999, Port Ship Services was understaffed. Although the evening shift normally had two deckhands (one for each launch boat), neither of the two deckhands showed up for work that evening making it necessary for the dispatcher to ask Port Ship's Poydras facility to send a deckhand up to assist. That deckhand was Mr. Arabie. Testimony of Hoffman and Arabie.
44. Mariano admitted at trial that, had one of the two deckhands that were scheduled to report to work at Port Ship Service assisted him in moving his boat, he would not have cast the mooring line by himself, and therefore he would not have injured his shoulder. Testimony of Mariano.
45. The Court found that Mariano's shoulder injury was a direct result and was proximately caused by the negligence of Port Ship Service in being understaffed on the night in question. The Court finds that the negligence of Port Ship Service contributed 50% to the injury sustained by Mariano.
CONCLUSIONS OF LAW AFTER THE BENCH TRIAL
1. This matter was originally filed in the 34th Judicial Court for the State of Louisiana, in the Parish of St. Bernard, and was timely removed to this Court, which has original subject matter jurisdiction under the provisions of 28 U.S.C. § 1332, permitting removal of this action under 28 U.S.C. § 1441. This matter also falls within the Court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, and venue is proper.
2. The Court finds, by a preponderance of the evidence, that the injuries sustained by Dafydd Hoffman were proximately and legally caused by the negligence of the defendants.
3. Hoffman sustained TWO THOUSAND FIVE HUNDRED NINETY-TWO DOLLARS AND 00/100 (82,592.00) in stipulated past lost wages.
4. Hoffman has not sustained any future lost wages.
5. Hoffman incurred past medical expenses in the amount of TWENTY-ONE THOUSAND THIRTY-EIGHT DOLLARS AND 00/100 ($21,038.00).
6. The right of subrogation is an exception to the rule even if the party subrogated does not appear to assert its subrogation rights and the defendants do not timely object to the non-joinder the necessary party. Kidder v. Boudreaux, 636 So.2d 282, 284 (La.App. 3 Cir. 1994); Guillory v. Terra International, Inc., 613 So.2d 1084, 1093 (La.App. 3 Cir. 1993).
7. At all material times, plaintiffs' employers, Port Ship Service, Inc., had an Employee Benefit Plan (the "Plan") managed by Gilsbar, Inc. The plaintiffs were covered under the Plan at all relevant times.
8. Under the terms of the Plan, Gilsbar paid a majority of Hoffman's medical expenses. The only medical expenses pertaining to Hoffman's treatment that remain unpaid are:
Dr. Charles Murphy $2195.00
Jefferson Medical Services $ 603.00
Metro Physical Therapy $ 165.00
Kenner Regional Medical Center $ 48.24
TOTAL $3011.24
9. Gilsbar has a right of subrogation to recover payments made by it under the coverage of the Plan. Gilsbar is the proper party plaintiff in an action to assert its subrogation rights, and plaintiffs cannot recover damages for medical expenses for which Gilsbar has already compensated them. Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1 Cir. 1992); Murray v. Sapp, 573 So.2d 495 (La.App. 1 Cir. 1990).
10. Hoffman can only recover from the defendants the amount of medical expenses that are unpaid at this date.
11. Hoffman is awarded THIRTY-FIVE THOUSAND DOLLARS AND 00/100 ($35,000.00) in general damages which includes past and future pain and suffering, past and future mental anguish, and past and future loss of enjoyment of life.
12. The Court found, by preponderance of the evidence, that the injuries sustained by Andrew Mariano were proximately and legally caused by the negligence of both the defendants and of his employer, Port Ship Service.
13. Mariano sustained past lost wages in the amount of THREE THOUSAND NINE HUNDRED SEVENTY-EIGHT DOLLARS AND 00/100 ($3,978.00).
14. Mariano has not sustained any future lost wages or future loss of earning capacity.
15. Mariano incurred past medical expenses in the amount of SEVENTEEN THOUSAND FOUR HUNDRED FORTY-TWO DOLLARS AND 09/100 ($17,442.09).
16. The right of subrogation is an exception to the rule even if the party subrogated does not appear to assert its subrogation rights and the defendants do not timely object to the non-joinder of the necessary party. Kidder v. Boudreaux, 636 So.2d 282, 284 (La.App. 3 Cir. 1994); Guillory v. Terra International, Inc., 613 So.2d 1084, 1093 (La.App. 3 Cir. 1993).
17. At all material times, plaintiffs' employers, Port Ship Service, Inc., had an Employee Benefit Plan (the "Plan") managed by Gilsbar, Inc. The plaintiffs were covered under the Plan at all relevant times.
18. Under the terms of the Plan, Gilsbar paid a majority of Mariano's medical expenses. The only medical expenses pertaining to Hoffman's treatment that remain unpaid are:
Chalmette Medical Center $1499.99
The Health Care Center $1211.00
Dr. Ralph Gessner $ 362.69
Motion Dynamics $3788.00
TOTAL $6861.68
19. Gilsbar has a right of subrogation to recover payments made by it under the coverage of the Plan. Gilsbar is the proper party plaintiff in an action to assert its subrogation rights, and plaintiffs cannot recover damages for medical expenses for which Gilsbar has already compensated them. Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1st Cir. 1992); Murray v. Sapp, 573 So.2d 495 (La.App. 1St Cir. 1990).
20. Mariano can only recover from the defendants the amount of medical expenses that are unpaid at this date.
21. Mariano was awarded TWENTY-FIVE THOUSAND DOLLARS AND 00/100 ($25,000.00) in general damages which includes past and future pain and suffering, past and future mental anguish, and past and future loss of enjoyment of life.
22. The Court found, by preponderance of the evidence, that the negligence of Mariano's employer, Port Ship Service, contributed 50% to the injuries sustained by Mariano, and therefore his recovery was reduced accordingly.
23. Amount of Final damages awarded.
Type of Damage Hoffman Mariano
General $35,000.00 $25,000.00
Stipulated past lost wages 2,592.00 3,978.00
Past medical expenses not 3,011.24 6,861.68 paid by Gilsbar, Inc.
TOTAL $40,603.24 $17,919.84** ========== ============
** Mariano's total damage figure was actually $35,839.68, but was reduced by the Court according to the fault attributable to his employer, Port Ship in the amount of 50 percent.
CLAIMS FOR AND ARGUMENTS AGAINST AMENDMENT OR ALTERATION OF JUDGMENT
1. This Honorable Court erred as a matter of law by holding that Port Ship Service's (who is not a party to this suit) contributed 50 percent to the injuries sustained by Andrew Mariano. The Plaintiff states that the reason for this was that the Court found the employer to be understaffed on the night of the accident and that this was the cause of the shoulder injuries to Mr. Mariano; however, according to the Plaintiff, but for the negligence of the Defendant, Port Ship would not have attempted to launch more than one of its boats because it is Port Ship policy not to launch more than one ship when only one deckhand is present. The negligence of the Defendant required a second deckhand to be present. Plaintiff notes that each of Port Ship's boats was moored at the time of the accident and the only reason that they attempted to launch the boats was to avoid collision with the runaway HYDE PARK. Plaintiff argues that Port Ship had no duty to anticipate the negligence of the defendant, thereby owing no duty to have a boat operator and deckhand present for each of its boats when they are moored. DEFENDANTS assert that in fact, it is company policy to put two employees on each shift, and not one as the Plaintiffs state. Defendants produced testimony by the company president and other company employees as to this policy. On the night in question, the two employees did not show up at the work site, thus causing Port Ship to call additional help in to assist. If the two employees would have shown up, then there would have been no need for Mr. Mariano to `pull with all of his strength' because the other deckhand could have maneuvered the boat with the engines. This was the Court finding at trial. Also, the Port Ship facility has been struck numerous times before, hence they should have had the appropriate personnel present.
2. This Honorable Court erred as a matter of law by applying the subrogation exception to the collateral source rule and awarding a credit to the defendant for the medical expenses paid by Gilsbar, the Plaintiffs healthcare insurer. PLAINTIFFS argue that subrogation must be proven. They point to Kidder v. Boudreaux, 636 So.2d 282 (La.App 3 Cir. 1994); Guillory v. Terra International, Inc., 613 So.2d 1084, 1093 (La.App. 3 Cir.), wherein they argue that the court did not apply the subrogation exception to the collateral source rule specifically because the insurance policy was not entered into the record. Here, they argue that the Gilsbar Employee Benefit Plan was NOT entered into the record. Instead, they state that the Defendants included only five individual plan amendments not pertaining to subrogation and a summary plan description. They maintain that it is impossible to prove subrogation without reviewing the actual subrogation provision in the plan document. DEFENDANTS maintain that they issued a subpoena duces tecum to Gilsbar because they knew that they would be able to rely on the documents because they would contain unambiguous language regarding the subrogation. In response, Gilsbar produced several documents regarding the Plan, and the Defendants did all that they could to obtain copies of every relevant document. Thereafter, Defendant's counsel stated to the opposing counsel that they intended to rely on the documents that had been produced when making a collateral source argument. Also, the documents that were produced were made part of the Defendant's bench book. Defendants also point to the fact that the Plaintiffs did not cite any of these arguments in their post-trial memo on the applicability of the collateral source rule; subsequently, the Court adopted the Defendant's arguments as to the applicability of the collateral source rule. Defendants argue that while the actual Plan is probably the best evidence, there is no question that there was a Gilsbar plan in place and working order, and also that the summary provisions of the Plan are more than adequate. Defendants argue that the motion before the court is to provide a procedure for correcting newly discovered evidence. Here, the evidence was not new and has previously been litigated. For more, look to the Court's Conclusions following the Bench Trial, parts 9-20.
3. Notwithstanding, it is a clear error of law to give the defendant a credit for 100% of the medical expenses paid on behalf of Mr. Mariano, when the defendant was only found to be 50 percent responsible for Mr. Mariano's injuries. Counsel for Plaintiff says that he believes wholeheartedly that this is a clear error of law to hold Port Ship responsible for Mr. Mariano's injuries, as well as for the Court to apply the subrogation exception to the collateral source rule. Plaintiff points to Octave Orgeron v. Henry Prescott, Jr. and State Farm, 636 So.2d 1033 (La.App. 5th Cir. 1994), wherein the court awarded an intervener his expenses reduced by the percentage of fault assigned to the plaintiff. DEFENDANTS state that the Judgement made clear that the Court only gave 100 percent credit to the defendants for those medical expenses already paid by Gilsbar on behalf of Mariano and Hoffman. The Court gave this credit because it determined that the collateral source rule did not apply to Plaintiffs claims for damages. In other words, the allocation of fault to Port Ship had nothing to do with the credit because the defendants were entitled to this credit irrespective of the allocation of fault to Port Ship. For Mariano's injuries, the Court reduced these unpaid medical expenses by only 50 percent, not the 100 percent claimed by Plaintiff, due to Port Ship's proportionate fault. All of this was in accordance with accepted principles of maritime law a Civil Code arts. 2323 and 2324. For Hoffman's unpaid medicals, the Court did not give any credit to Defendants because the Court determined that neither Hoffman nor Port Ship were at fault for causing Hoffman's injuries.
4. This Honorable Court erred as a matter of law by awarding inadequate damages. PLAINTIFFS state that the Court awarded Mr. Mariano $25,000 in general damages. As a result of the accident, he had acromioplasty surgery and also suffers from tendinitis, bursitis and impingement syndrome. Plaintiff cites White v. Loganecker, 637 So.2d 1213 (La.App. 1St Cir. 1994), wherein the first circuit increased an award of $15,000 to $35,000 when plaintiff suffered an acromioplasty surgery. They also point to Waterman v. Colonial Penn Ins. Co., 666 So.2d 699 (La.App. 4th Cir. 1995), wherein the fourth circuit affirmed a general damage award of $42,000 for one arthroscopic surgery. Secondly, Plaintiffs state that the Court awarded Mr. Hoffman $35,000 in general damages. As a result of the accident, Mr. Hoffman suffered a meniscus tear, medial synovial plica and chrondomalacia. He underwent arthroscopic surgery as a result. Plaintiffs assert that the fourth circuit affirmed an award of $75,000 in general damages for a person who had arthroscopic surgery and suffered no other injuries. Corliss v. Elevating Boats, Inc., 599 So.2d 434 (La.App. 4th Cir. 1992). DEFENDANTS assert that the damages were quite generous and cite numerous cases that deal with quantum issues.
COURT'S ANALYSIS AND LAW
The Federal Rules of Civil Procedure provide that any party may file a motion to alter or amend a judgment within ten business days after its entry. See Fed.R.Civ.P. Rule 59. Under Rule 59, a district court enjoys considerable discretion in granting or denying such a motion. Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990); First Commonwealth Corp. v. Hibernia Nat. Bank of New Orleans, 891 F. Supp. 290 (E.D.La. 1995), amended 896 F. Supp. 634, affirmed 85 F.3d 622. There are certain grounds upon which a Court may grant a Rule 59 motion for reconsideration or to alter or amend the judgment, for example: (1) intervening change in the controlling law has occurred, (2) evidence not previously available becomes available, or (3) it is necessary to correct clear error of law or to prevent manifest injustice. Database America, Inc. v. Bellsouth Advertising Pub. Corp. 825 F. Supp. 1216 (D.N.J. 1993). Courts in this district hold that a moving party must satisfy at least one of the following criteria to prevail on a Rule 59 (e) motion: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; and (4) the motion is justified by an intervening change in the controlling law. Craig v. U.S. Postal Service, 2002 WL 31319937 (E.D.La. 2002), See also Fidelity Deposit Co. of Md. v. Omni Bank, 1999 WL 970526, 3 (E.D.La. 1999); Jupiter v. BellSouth Telecomms., Inc., 1999 WL 796218, 1 (E.D.La. 1999); Burma Navigation Corp. v. M/V Reliant Seahorse, 1998 WL 781587, 1 (E.D.La. 1998).
It is important to note that amendment of a judgment is an "extraordinary remedy which should be used sparingly and should not be used to relitigate old matters, raise new arguments, or present evidence that could have been raised prior to the entry of judgment." Lafargue v. Jefferson Parish, No. 98-3185, 2000 WL 174899, 1 (E.D.La., Feb. 11, 2000). A court's reconsideration of a prior order is an extraordinary remedy, which should be used sparingly. Marzoui v. Hyatt Corp., 2002 WL 31319941 (E.D.La. 2002); See Fields v. Pool Offshore, Inc., 1998 WL 43217, 2 (E.D.La. 1998), aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v. George G. Sharp, Inc., 1995 WL 517120, 1 (E.D.La. 1995). The court must "strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts." Edward H. Bohlin Co., 6 F.3d 350, 355 (5th Cir. 1993).
First, Plaintiffs assert that this Court erred as a matter of law by holding that Port Ship contributed 50 percent to the injuries sustained by Andrew Mariano. In the Court's Order, Reasons, and Judgment, the Court articulated its decision regarding its finding that Port Ship be held 50 percent responsible. The Court finds that the Plaintiffs have shown no compelling reason, within the prevailing law, why it should alter or amend its judgment as a result of the motion of the Plaintiff. Whilst there is truth to the Plaintiffs assertion that there is `no duty to anticipate the negligence of another', it cannot be ignored that the circumstances surrounding the accident on the night in question revolve in large portion on the fact that Port Ship was understaffed. Had Port Ship's facility been appropriately staffed, then the results of the incident in questions would more probably than not have been altogether different. At a minimum, the events would have unfolded differently. This claim is DENIED.
Secondly, Plaintiffs claims that this Court erred as a matter of law in applying the subrogation exception to the collateral source rule and awarding a credit to the Defendant for the medical expenses paid by Gilsbar, the healthcare insurer of the Plaintiff. The issue of the application of the subrogation exception to the collateral source rule can be spliced into two different analysis: (1) did this Court err as a matter of law by applying the subrogation exception to the collateral source rule, and (2) does the failure of the Plaintiffs to argue evidentiary insufficiency in his post-trial memorandum as well as the Plaintiffs efforts to argue evidentiary insufficiency for the first time allow this Court to entertain this argument on a Rule 59 motion. In examining the first issue, this Court finds that it was not incorrect in applying the subrogation exception to the collateral source rule. Following the bench trial, parties in the above-captioned matter filed memoranda on the applicability of the subrogation exception to the collateral source rule. Subsequently, this Court found that Gilsbar had a right of subrogation to recover payments made by it under the coverage of the Plan, and that Gilsbar was the proper party plaintiff to seek such contribution. See Order and Reasons, Doc. #45, Conclusions of Law, 1-22, specifically ¶ 9, 16, 19. Plaintiffs assertion that subrogation was not proven at the bench trial due to the absence of the actual Gilsbar Plan document in the Court record is without merit. This Court reviewed numerous documents that involved provisions of the Gilsbar Plan. Additionally, the Court reviewed the actual Employee Benefit Plan Summary Plan Description. This description plainly states the procedures and the proper parties to assert subrogation as well as their rights. The Plan Summary is not ambiguous, as Plaintiff argues, instead, the provisions that the Plaintiff refers to accurately define the rights of a party who MAY or MAY NOT assert his rights to subrogation. Notwithstanding, the Plaintiff in this situation is not harmed by reference to the Summary Plan Description. It is a part of the Plan as much as any specific section of the actual Plan. As such, Plaintiff fails to provide any reason why the Court should take the extraordinary step to upset its previous award. In looking at the second element of the spliced analysis, the Court finds that this is the first time that the Plaintiff has argued evidentiary insufficiency as to the application of the subrogation exception to the collateral source rule. In their post-trial memorandum, the Plaintiffs relied on merely legal arguments aimed at distinguishing case law from the present situation, and Plaintiff failed to make any such argument related to the want of the actual Gilsbar Plan from being entered into the record. Now, after a trial on the merits, with a full record of documents in evidence including the Gilsbar Summary Plan Description and numerous other provisions of the Plan, and a supplementary post-trial memorandum submitted exclusively on the premise of the application of the subrogation exception to the collateral source rule, the Plaintiff raises these arguments for the first time. This is not the function of a Rule 59 Motion to Alter or Amend. As such, Plaintiff has `missed the boat'. When arguments are raised for the first time on a Rule 59 Motion to Alter or Amend, this Court is under no duty to entertain such an argument. Accordingly, this Court declines to further address the issue.
In Seamon v. Vaughn, 921 F.2d 1217 (11th Cir. 1991), defendants brought claim on appeal that the district court's judgment against co-defendant was erroneous. The Eleventh Circuit Court of Appeals declined to address the argument because the appellant failed to present the argument to the district court until after final judgment was entered. The Court found that the action of the district court in not entertaining the argument, as it was made for the first time in a Rule 59 Motion to Alter or Amend, was not an abuse of discretion.
Third, Plaintiffs claim that this Court erred as a matter of law to give the defendant credit for 100 percent of the medical expenses paid on behalf of Mr. Mariano, when the defendant was found only to be 50 percent responsible for Mr. Mariano's injuries. However, as set forth in the Court's Order, Reasons, and Judgment, see supra, the Court only gave the Defendants a 100 percent credit for those medical expenses that were ACTUALLY PAID by Gilsbar, under the plan, on behalf of the Plaintiffs. As the Defendants correctly point out, the Court gave this credit because the Court determined that the collateral source rule did not apply to the Plaintiffs' claims for damages. The allocation of fault to Port Ship had nothing to do with the credit for medical expenses paid by Gilsbar, as Defendants are entitled to this credit irrespective of Port Ship's fault; instead, the fault of Port Ship comes only into play when examining Mariano's damage award. The Court DENIES the request of Plaintiffs to amend based on the application of fault to the overall award of Mr. Mariano.
Finally, Plaintiffs pray that this Court erred as a matter of law by awarding inadequate damages. This Court disagrees with the assertions of the Plaintiff that the damages are inadequate. Upon this Court's initial determination into what amount of, if any, general damages should be awarded, the Court found that $35,000.00 and $25,000.00 should be awarded to Messrs. Hoffman and Mariano, respectively. The Court arrived at its initial determination of a general damage amount through careful scrutiny and analysis of similarly situated claimants, and in the immediate motion, the Plaintiff provides no valid reasons as to why the general damages award to Messrs, Hoffman and Mariano should be altered. This Court DENIES the request of the Plaintiffs to amend the award of general damages.
Accordingly,
IT IS ORDERED, ADJUDGED, and DECREED that the Motion to Alter or Amend Final Judgment, filed by the Plaintiffs, and pursuant to the Federal Rules of Civil Procedure, Rule 59, be and the same is hereby summarily DENIED.