Murray v. Sa

870 F.3d 915

Roger MURRAY; Elise Murray, husband and wife, Plaintiffs–Appellees,

v.SOUTHERN ROUTE MARITIME SA, a Panamanian corporation; Synergy Maritime Pvt Ltd, an Indian corporation; APL IRELAND M/V, IMO number 9260914, her gear, appurtenances, equipment and furniture, in rem, Defendants–Appellants.

No. 14-36056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2017, Seattle, Washington

Filed August 31, 2017

Philip A. Talmadge (argued), Talmadge/Fitzpatrick/Tribe, Seattle, Washington; Barbara L. Holland and David H. Smith, Garvey Schubert Barer, Seattle, Washington; for Defendants–Appellants.

Howard Mark Goodfriend (argued) and Ian C. Cairns, Seattle, Washington; C. Steven Fury, Francisco A. Duarte, and Scott D. Smith, Fury Duarte P.S., Seattle, Washington; for Plaintiffs–Appellees.

Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

Dissent by Judge Bea

OPINION

McKEOWN, Circuit Judge:

The events underlying this appeal center on Roger Murray, a longshoreman who experienced an electrical shock while working aboard the M/V APL IRELAND, a vessel owned by Southern Route Maritime SA and Synergy Maritime Pvt. Ltd. (collectively, the "vessel owner"). While Murray was descending a ladder and holding a piece of rebar, the rebar came into contact with a floodlight provided by the vessel owner which allowed electrical current to flow through his right arm, across his chest, and out through his left pinky, where it left a visible burn mark. Murray exhibited a range of ailments after the shock, including stuttering, balance and gait problems, and erectile dysfunction.

Murray sued under the Longshore and Harbor Workers' Compensation Act ("Longshore Act"), 33 U.S.C. § 901 et seq. , alleging that the vessel owner had been negligent in turning over the ship with a faulty floodlight. The jury awarded Murray over $3.3 million for his injuries and awarded his wife $270,000 for loss of consortium. The district court denied the vessel owner's motions for judgment as a matter of law, new trial, and remittitur.

Unwilling to go down with the ship, the vessel owner appeals, asserting three trial errors—a flawed jury instruction and two errors related to the admission of testimony by Murray's experts. We disagree on all counts. The district court properly instructed the jury that the vessel owner owes a duty to Murray as a longshoreman to turn over the ship and its equipment in a reasonably safe condition, which necessarily requires the vessel owner to take reasonable steps to inspect the ship and equipment before turnover. Further, the court did not abuse its discretion in allowing Murray's key scientific expert to describe his theory of electrical injury because the court adequately assessed the reliability of his theory and fulfilled its gatekeeping function under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Likewise, there was no error in admitting the medical experts' testimony. We affirm.

Analysis

I. Jury Instruction Defining the Turnover Duty Under the Longshore Act

The Longshore Act provides a cause of action to longshoremen against the vessel owner "[i]n the event of injury ... caused by the negligence of a vessel." 33 U.S.C. § 905(b). Here, Murray claims that the vessel owner breached its duty to turn over the vessel and its equipment in a safe condition.

At issue is Instruction 14, in which the district court defined the vessel owner's turnover duty:

One of the duties [vessel owners] owe to longshoremen is called "the turnover duty of safe condition." [The vessel owner] ha[s] the duty to use reasonable care to turn over the vessel and its equipment in such condition that an expert and experienced longshoreman would be able, by the exercise of reasonable care, to carry on his work on the vessel with reasonable safety to persons and property. In exercising such reasonable care, [the vessel owner] ha[s] a duty to take reasonable steps to inspect the vessel and its equipment.

The first sentence is introductory. The second sentence captures almost word-for-word the Supreme Court's general description of the turnover duty:

A vessel [owner] must exercise ordinary care under the circumstances to turn over the ship and its equipment and appliances in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship's service or otherwise, will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.

Howlett v. Birkdale Shipping Co., S.A. , 512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994) (citation and internal quotation marks omitted); Scindia Steam Navigation Co. v. De Los Santos , 451 U.S. 156, 166–67, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). The third sentence of the instruction gives practical meaning to the turnover duty by recognizing a duty to inspect the ship and equipment.

In the vessel owner's view, Instruction 14's formulation of the turnover duty is legally flawed because the instruction improperly expands the vessel owner's obligation to inspect the ship and equipment, states that the duty is to the longshoremen rather than the stevedoring company, and imposes an ongoing duty to inspect. Reviewing de novo, we conclude that the district court did not commit instructional error. See Image Tech. Servs., Inc. v. Eastman Kodak Co. , 125 F.3d 1195, 1208 (9th Cir. 1997).

A. Turnover Duty Encompasses Duty to Inspect

The Supreme Court's first major exposition on the turnover duty under § 905(b) came in Scindia Steam , which contemplates a duty to inspect as part and parcel of the turnover duty. Although a duty to inspect is not mentioned explicitly, the Court defined the vessel owner's "duty with respect to the condition of the ship's gear, equipment, tools, and work space to be used in the stevedoring operations." Scindia Steam , 451 U.S. at 167, 101 S.Ct. 1614. To that end, a vessel owner fulfills its responsibilities when it provides a reasonably safe workplace for the longshoremen. Id. at 166–67, 101 S.Ct. 1614. The only way the vessel owner can do so is by checking the ship and equipment before turning them over in order to confirm that they are safe enough to be used in cargo operations. Otherwise, the turnover duty would be rendered nugatory, taking on a "see no evil" approach.

As one treatise puts it, Scindia Steam "implicate[s] the shipowner's duty to inspect the ship for hazards before turning the ship over ... because inspection is integral to providing the stevedore with a reasonably safe workplace." Robert Force & Martin J. Norris, The Law of Maritime Personal Injuries § 8:30 (5th ed. 2016). Justice Brennan's concurrence in Scindia Steam reads the majority opinion the same way, explaining that the law requires a vessel owner to "take reasonable steps to determine whether the ship's equipment is safe before turning that equipment over to the stevedore." 451 U.S. at 179, 101 S.Ct. 1614 (Brennan, J., concurring).

The Court's later pronouncements on the turnover duty reinforce the inspection obligation. After reiterating a vessel owner's general turnover duty, the Court in Howlett examined the "corollary" duty to warn the stevedore of latent hazards that are known or should be known to the vessel owner. 512 U.S. at 98–99, 114 S.Ct. 2057. The Court went on to conclude that the duty to warn attaches where "the exercise of reasonable care would place upon the shipowner an obligation to inspect for, or discover, the hazard's existence." Id. at 100, 114 S.Ct. 2057. In explaining the relationship between the duty to warn and the inspection duty, the Court cited a Third Circuit case for the proposition that "the shipowner's duty to warn the stevedore of hidden dangers necessarily implies a duty to inspect to discover those dangers." Kirsch v. Plovidba , 971 F.2d 1026, 1029 (3d Cir. 1992), cited in Howlett , 512 U.S. at 100, 114 S.Ct. 2057. Howlett more than suggests that reasonable steps be taken to inspect the ship and equipment before turnover.

Our court has been even clearer on a vessel owner's duty to perform an inspection to fulfill its turnover duty. We have unequivocally held that "[w]here the shipowner itself supplies equipment, it has a duty to inspect the equipment before turning it over for use by the stevedore." Hedrick v. Daiko Shoji Co. , 715 F.2d 1355, 1357 (9th Cir. 1983) ; see also Lincoln v. Reksten Mgmt. , 354 F.3d 262, 268 (4th Cir. 2003) ("[T]he vessel might have been negligent in the maintenance, upkeep, and especially the inspection of the deck in question, so that, in the exercise of reasonable care, it might have discovered the defect ..., enabling it to warn the stevedore of the defect." (emphasis added)); Reed v. ULS Corp. , 178 F.3d 988, 992 (8th Cir. 1999) (affirming summary judgment for vessel owner because "[t]he record reflects that the inspection of the gangway ... was reasonable"); Kirsch , 971 F.2d at 1029 (noting "the shipowner's duty to inspect the ship for hazards before turning the ship over to the stevedore").

This formulation of the turnover duty produces doctrinal coherence because it logically fits the duty to inspect within the general turnover duty and its corollary duty to warn. The turnover duty mandates exercising reasonable care to provide a ship and equipment that are reasonably safe for the stevedore to carry on cargo operations. Part of that duty is to examine the ship and equipment. When that inspection turns up latent hazards that would not be obvious to or anticipated by a competent stevedore, the vessel owner's duty to warn kicks in because the vessel owner is in the best position to detect and avoid harm and should be liable if it does not speak up. See Howlett , 512 U.S. at 101–03, 114 S.Ct. 2057. The vessel owner's belated argument to limit the inspection to identifying...