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April 2017

$400,000 Judgment for Seaman’s Pre-Death Fear and Conscious Pain and Suffering Affirmed on Appeal

In McBride v. Estis Well Service, L.L.C., 2017 WL 1321979 (5th Cir. Apr. 10, 2017), Sky Sonnier, a crewman on a barge supporting a truck-mounted drilling rig operating in Louisiana navigable waters, was killed when the rig and truck toppled over, pinning him between the derrick and mud tank.  The Fifth Circuit Court of Appeals affirmed the district judge’s finding that Sonnier’s survivors were entitled to recover $400,000 in damages for the fear he experienced trying to avoid the impact and the few minutes of conscious pain and suffering he endured before he expired.  The appeals court wrote:

“As to pre-death conscious pain and suffering, the pathologist who performed the autopsy on Sonnier testified that Sonnier could have been conscious and aware for up to five minutes after impact, but was more likely than not conscious for one to two minutes after impact. Moreover, witness testimony claimed that Sonnier was alive and gurgling blood shortly after impact, and the district court appears to have found this testimony credible.”

The appellate court noted that the Jones Act enables a plaintiff to recover damages for pre-death pain and suffering, and that “[c]ompensable pain and suffering includes a victim’s ’emotional injury caused by fear of physical injury to himself.'”  For a plaintiff to recover damages for a decedent’s post-injury pain and suffering, “he ‘must prove, by a preponderance of the evidence, that the decedent was conscious after realizing his danger.'”


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