New Jones Act Case from Fifth Circuit – Clark v. Kellogg Brown & Root

New maritime personal injury case from Fifth Circuit Court of Appeals. It is unpublished and not precedential, but is a good primer on injury claims. The case is Clark v. Kellogg Brown & Root, 2011 U.S. App. LEXIS 2354 and can be found here. Facts: A maritime worker was exposed to benzene while working on barges in the 1970's. In 2006, he was diagnosed with acute myelegenous leukemia and filed suit against his employer for personal injury under the Jones Act as well as admiralty claims for maintenance and cure and unseaworthiness. At trial, he prevailed only on the Jones Act claim. Issues on appeal: 1) did the trial court use the correct causation standard; 2) did the trial court err in finding that benzene cause the worker's medical condition; and 3) did the trial court err in allowing certain expert witness testimony. Analysis: As to the first point, the Fifth Circuit held: We have explained that the standard is one of "producing cause" rather than "proximate cause" and that the burden of proof is "featherweight." Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60, 62 (5th Cir. 1982). Thus, two concepts come into play here – the type of causation that must be shown (producing) and the plaintiff's burden to show that cause (featherweight). The court noted that the burden of proof for Jones Act (which uses the burden of proof contained in the Federal Employers Liability Act) will be decided in a case bound for the U.S. Supreme Court, McBride v. CSX Transportation, Inc. Nevertheless, it followed existing precedent which allowed for claimants to only prove that the exposure to benzene was a producing cause of the injury and not the proximate cause. The trial court explicitly found that the plaintiff had only established that the benzene exposure was a producing cause and also explicitly found that benzene exposure was not a proximate cause of his injury. As to the second and third points, the Fifth Circuit noted that the trial court believed the witnesses who testified that the claimant was exposed to benzene on the barges. The court further noted that the competing experts' determination of benzene exposure levels, using extrapolation from the claimant's testimony, was allowable. This decision could have turned out differently depending on what the Supreme Court does in the McBride case. Stay tuned.

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