The Firm . Plaintiff recovers for fall on deck

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Plaintiff recovers for fall on deck

Verdict: For Plaintff, $866,000.00
Case Type: Jones Act
Case Name: Hector De Leon v. King Fisher Marine Service L.P., No. C-1177-07-E
Venue: Hidalgo County District Court, 275th, TX
Judge: Federico G. Hinojosa Jr.
Date: 07-13-2012
 

 

 

Plaintiff

Attorney:

  • Tony G. Buzbee; The Buzbee Law Firm; Houston, TX, for Hector De Leon

Expert:

  • Cmdr. Henry Woods; Decks/Docks; Houston, TX called by: Tony Buzbee
  • Kenneth Berliner M.D.; Orthopedic Surgery; Houston, TX called by: Tony Buzbee
  • Kenneth McCoin Ph.D.; Economics; Houston, TX called by: Tony Buzbee

 

Defendant:

Attorneys:

  • F. Daniel Knight; Chamberlain, Hrdlicka, White, Williams & Aughtry LLP; Houston, TX, for King Fisher Marine Service L.P.
  • Daniel D. Pipitone; Chamberlain, Hrdlicka, White, Williams & Aughtry LLP; Houston, TX, for King Fisher Marine Service L.P.

Experts:

  • Andrew Kant M.D.; Orthopedic Surgery; Houston, TX called by: F. Knight, Daniel Pipitone
  • David Scruton; Decks/Docks; Houston, TX called by: F. Knight, Daniel Pipitone
  • Taylor Starkey M.D.; General Practice; Victoria, TX called by: F. Knight, Daniel Pipitone

 

Facts:

On March 25, 2007, plaintiff Hector De Leon, age not given, a tender boat operator, was performing his regular duties aboard the appurtenant dredge tender Austin B, a vessel that De Leon maintained and it accompanied the dredge J.N. Fisher.

De Leon claimed he slipped and fell on his back while performing maintenance on the deck of the Austin B., injuring his lower back and right shoulder.

De Leon sued King Fisher Marine Service L.P., asserting violations of maritime law. He claimed that his fall was due to the absence of non-skid material on the tender's deck. According to his maritime-safety expert, the defendant failed to provide De Leon enough opportunity and time to apply non-skid material to the deck. Moreover, the non-skid material that was available to use - a combination of paint and sand - was insufficient, as the mixture would wear off after only two weeks. The expert concluded that an adequate non-skid residue should at least exceed the duration of two weeks.

The defendant maintained that the plaintiff fabricated the incident. However, if the accident occurred as De Leon claimed, then the plaintiff is comparatively negligent, since it is his duty as tender boat operator to apply non-skid residue and maintain a safe vessel. The defense citied the deposition of its expert in maritime safety, who said the provided non-skid material was sufficient, and that it was De Leon's responsibility to properly apply it to the boat's deck.

 

Injury:

Within a couple of days of the alleged accident, De Leon, complaining of right (dominant) shoulder and lower back pain, presented to a physician who then referred him to an orthopedist, who ordered an MRI and lumbar discogram, which showed an L5-S1 disc herniation. De Leon was also diagnosed with a strained shoulder. As a result, De Leon underwent four sessions of physical therapy for his shoulder and back and an epidural injection to each region. No further treatment was administered. He sought $36,000 in past medical costs.

The plaintiff's treating orthopedic surgeon testified that the plaintiff suffered an L5-S1 herniation as a result of the subject accident, and that he had recommended to De Leon a full disc replacement. De Leon sought approximately $150,000 in future medical expenses. The physician also said that the plaintiff was unable to perform any heavy-duty work, and that he was restricted to only light to medium duty. Following the accident, De Leon did not return to his job and he found work as a laborer for an energy company, which eventually laid him off. He wasn't working at the time of trial and sought $90,000 in past lost earnings and $350,000 in future lost earnings.

De Leon said he constantly experiences varying levels of pain in his lumbar spine which has impeded his physical activity. He sought unspecified amounts in noneconomic damages for past and future pain and suffering and past and future mental anguish.

The defense argued that six days before the accident, the plaintiff was involved in another work-related incident - an incident he failed to report, alleged the defendant - wherein he hurt his lower back while pulling a piece of heavy machinery. The general practitioner who saw De Leon after the subject accident testified that the plaintiff did not mention the prior incident. After injuring his back while moving the machinery, De Leon underwent an MRI which showed an L5-S1 disc herniation, according to the defense expert neuroradiologist, who concluded that there were no changes in the pre- and post-subject accident MRIs, and that the plaintiff's condition in fact improved following the accident. This theory was supported by the defense's orthopedic surgeon.

 

Verdict Information:

The jury found that the defendant was 90 percent negligent and the plaintiff was 10 percent negligent. De Leon's award of $866,000 was reduced to $779,400.

Hector De Leon

$36,000 Personal Injury: Past Medical Cost

$200,000 Personal Injury: Future Medical Cost

$90,000 Personal Injury: Past Lost Earnings Capability

$350,000 Personal Injury: Future Lost Earning Capability

$10,000 Personal Injury: Past Pain And Suffering

$30,000 Personal Injury: Future Pain And Suffering

$100,000 Personal Injury: past mental anguish

$50,000 Personal Injury: future mental anguish

 

Editor's Comments:

This report is based on information that was provided by plaintiff's counsel. Defense counsel did not respond to the reporter's phone calls.

 

Verdictsearch
August 15, 2012
Edinburg, Texas