figure out really the best place to start and what really struck me today as it did when i first read the record on appeal is the finding that the judge made was that mr to parrot ill in this maritime case knew that he maybe should have gone below the deck in order to take care of himself and that's why she fountain comparatively at fault but then as i continued reading i found i realized that everything in this case almost every fact in this case is virtually undisputed the facts are not really in dispute but we get down to was the legal standard that was in our view misapplied and or misapprehended by the trial judge in this case so we know that mr who was a guest passenger on a crew boat as he had been forty or fifty times before over his career he knew the sea was rough he knew the vessel was bouncing around in fact it was peril not the captain to mr de parrot plaintive who said you know these seas are too rough i can't even do the job i've gone out to do please turn around let's go back for so that then the captain also about the boat fell into a trough and he lost his grip so he was also asked by the plaintiff him self why did you go below as i was going to try were bounce and going to get it was a bouncy right and he knew it from the time they hit the gulf all the way through the rest of it goes as me one of the points that the nigger gents is said to rest on is that your client should have given instructions for him to go below before the turn around and heating the rougher seas going that direction what about that well actually you're on it that's not actually what was said it there's no indication by the judge anywhere that he should have done it before he made the turn that's and that's maybe something implied it may be something people interpret ing but there was nothing said by the judge before you turn around you should have gone below i don't believe that's true so but he did say it's as he was turning hold i know how to conduct myself in rough seas dot com that's exactly it ron this man knew as well as anybody this is not a thirteen year old teenager going out on a on a day cruise for the first time it's not you know people going out on a ferry  like they did in the catalina case this is a guy who like was based upon going out to sea to make money that was his job he was picked for this job to go out to to the rigs because he goes not potentially suffered the same sort of injury well that's a good question because one of the cases cited by the plaintiff which i believe is the mccall versus williams a loser says mccall the rentals the man was actually in the pas in the seat when the wave hit him and he fell out of the seat so we don't know that wasn't tried that wasn't there was no expert testimony factual testimony or any evidence whatsoever as to what may or may not have happened had he been below in the first place ok we don't know that that's all hypotheticals and guessing which we don't want to get into here but we do know that mr de peril said well now that the mere fact that he stayed in the what do you call it the whe it would have been safer we don't know that it would have been i mean we know that going out going out before he was so you you just paid your money and took your chances you didn't put on any evidence about it that it would have it would not have been safer so you as we say you just sort of gone on the bessel and had someone expert witness go examine the vessel and perhaps offer expert testimony as to whether would have been safe for my body to go on down there and found it was you know covered with rubber foam to prevent injury to passenger but you know that's interesting because that that's part of the case was developed and some of it ok that there was testimony that the seats below were simply what they called the school bus seats ordinary little benches without seat belts without anything else like that that's that's it's an older boat it's not one of the new big modern fancy boats but that's how the boat was it was not a super padded super protective we're going to take care of everybody to the highest degree possible we're going to take care of our passengers well i would say that we did take care of that usually provided with a place and we are taking it were taken out roughly were taken out roughnecks out they were taken guys to do this and it's not exactly analogous but i know that judge jolly rode into not that many years ago dealing was that was an interesting one but what we really have here and you know i wasn't at the trial fiance with you but we did have a gentleman who simply did not want to be here not to be manly enough by going below every time this man went out on a  was normal to him and he said he was actually in the house for a specific purpose which is important too because he said i'm in the wheel house so that i can look and help find the place i'm gone i want to see the jack of hearts that i'm going to have but this is on the way page nine in the record eggs are with us on the subheading write offs part b the judge begins with the sentence i plaintiffs cannot recover economic damages from medical fees that the provider is precluded either by law yet at the very end of the opinion she gives him all of the medical expenses even though not all of them were paid that but you didn't move for up you didn't move for clarification or a new trial or anything based on that that omission in the opinion we took an appeal your honor we took an appeal on that i mean there were so many in our view there's so many other errors that trying to get one little piece fixed up wasn't going to do very much that the whole thing just came up on appeal but do you agree and this is a friendly question i would rate that by the fact of her statement of law that she that it appeared she felt she had to only award the actual expenses paid rather than all of the medical issue is what your reaction was the same to mine when i'm reading through that opinion and i got them to think well this is really good and then it just stopped it just stopped and then she went ahead and awarded it and you know the fact that i guess is more of a question for mr wrong and that is apparently the situation and sure that the analytical approach to that case was is made secure in a seaman so i could situations be it was not a seaman but still a maritime case and he had long short insurance which is a no fault provision of medical care on an injury it is identity add a little glee identical to your situation where fault is not an issue if you're injured during the course and scope you get that paid and in the malls on case of  for maintenance and sure here we're talking about a third party and who is not responsible for the worker's comp like compensation or maintenance and cure it seems to me that despite how many injuries they've been on boats no doubt in situations like this just not much settled law on the collateral source rule applicable to this kind of situation and what we do know from your time law general principles is we want uniformity  i don't know how we get there that doesn't mean we apply the majority rule in the states land based collateral source rule out how do we answer this just as the as a generic question how would tools who would use to to figure out what a uniform rule should be collateral source third party injury such as reporting responsibilities such as here in in this marry or on i think that you're on the right path here i mean the maritime concept called off of the land base into the into the sea in the sea law of land the law of the city has always been you get what you've actually lost you get compensated for your actual loss there is not and i don't want to use the phrase but really overly generous duplicative works training as compensation so when the cure situation if the cure was paid you don't get the amounts that the medical provider is billed to your cure provider you get the amount of the amount paid by your cure providers in louisiana we've gone in a recently in the hoffman decision going down that path to a false get medicaid decisions where basically the collateral source we're not saying there is not a collateral source recovery ok we realize that medical bills were paid and should be paid so we're not trying to say there's no collateral source component here but we are saying is that the amount to be recovered is the amount actually paid on your behalf ok this is not this is not the insurers this is not the injured party paid for the insurance it's a third party but the medical bills i think we all know medical bills that are issued by the health care industry these days are sort of random but they all have agreements with the various insurance companies and various other providers that they will charge a lower amount and accept that in payment by cream and by contract and so that's all that they that's all that's ever do in this day i mean just a simple principle that the collateral sort through derives from benefits that the plaintiff earned through his policy problematic and it's been in many ways overly generous this is not something where the plaintiff himself paid a premium this is not his bob and i mean the whole argument is bottomed on the fact that he's entitled to recover from another source the amount that the insurance company paid because he had paid for that insurance as an employee of the company and so he gets fifty seven thousand dollars which is the benefit of his bargain right and that's all he gets he's ever get that that's part of this is in place and there are plenty of the seeking to recover the balance he's the balance of the build a mount where he didn't pay for based on some argument of that he had paid for insurance or he worked harder or something well the argument is that that his your briefs with i thought we did we addressed the collateral source room in our in our bring your own i thought you said nothing about two hundred eighty thousand dollars of them the appeal by was essentially that the court erred in applying the collateral source rule and we addressed that we felt we felt that the court was correct in applying to collateral source rule in this particular case in this particular case well how do you how do you how do you jive that your client receiving all of the medical bills even though not all of them or not the entire amount was paid how do you how do you make that consistent with the court the district court thing a plaintiff cannot recover economic damages from medical fees that the provider is for polluted either by i agree money or by law from collecting from the employer how how how is that consistent and that's all she says she never mentions it again i essentially has a statutory right to recover with what they've essentially paid in the way of medical mr depair deal was responsible for some of the bills actually maybe not all of bills but some of the bills that were actually not paid it at the paid out of his own pocket that he was responsible for the employer didn't you did you put on evidence of that a trial i think we did you're on what you mean you think you did did you if i recall correctly i think there was a testimony by mr compared to that effect about here is that it exists on the grounds that he has entitled to collect from a collateral source them out that was paid on his medical because he earned the insurance policy that paid for his medicals therefore is in time the fifty seven thousand dollars he's not entitled to anything more because that was not part of his marking  pay the benefits regardless of whether it was negligent or not in return the employer takes a lien for the total amount of benefits paid on any judgement or some of the employee may later obtain accordingly the injured employee is fully but not double be compensated in this particular case and also this was the issue of collateral source in that case the dort fazer pays for the injuries for which it is responsible and the employer recover so much of his worker's compensation payments as a tribute attributable to the negligence but in that particular case the client is not being double the compensate and worker's comp is in it and of course you know there are the most of its appeal was not that the judge awarded the medical right off  to the argument was that the judge erred in applying the collateral source rule and i don't believe that judge that judgment all the erred in applying the collateral source rule clearly workers compensation benefits are the right collateral sources might not but  the the fifty seven thousand dollars as i understand it i mean is clearly from a collateral source correct so he can collect that against the captain as well as collect as well as have been his insurance paid all of his interest paid by the employer's policy line he can get fifty seven thousand dollars just when he should get to fifty seven thousand dollars i mean that is not double should should the players get the benefit of the medical write offs why shouldn't washington definitive get the benefit of the medical right off it wasn't it because the bargain he struck was for the insurance coverage that what he paid for insurance cover employers but again under the collateral source rule washington to washington tortfeasor benefit to the detriment of the plaintiff who's actually paid those premiums for all those years but those benefits now so you're making resampled on any evidence at trial making that argument that your honor although the write offs resulted in his only paying fifty seven thousand and medical to his employer playing fifty seven thousand medical he should get the whole one forty one eighty whatever the amount was was made at trial that there was a certain amount if you know of course at trial you know we introduced medical records as to what the total medical expenses were what was actually paid what workers compensation what was their lean that still outstanding what were you know what were they entitled to but i don't think that that particular argument was actually made i know that that that some of that testimony was asked in some of the medical depositions that were actually introduced i believe in the evidence at trial  t but that particular show i don't think was was addressed now time my question has to do with just with the general concept of collateral sewers it does seem to me also that rule exists it exists and maybe all the stage a vast number of states but we're talking about here it is sort of the desirability of applying it in an area that does not yet have that will well developed out and so that makes perhaps the policy of somewhat relevant here i mean to rule as defenders you're one of them for obvious reasons and certainly its critics but it does serve some purpose that we're not here challenging in so far as it applies so far but it's it seems to me it would be an extension to apply here maybe we should maybe we should not i would ask imposing council a while ago that maritime law one of the guiding principles is seek to form any yes or are stating a rule here might or might not be the store some sort of uniformity really does seem to me that we have in play what is the right rule absent any controlling law is that a fair statement that we which i am but just just addresses some of the issues that were brought up your honor on the liability i know there was there was no question at trial you know you know who was responsible for this but this  who actually oldest disprove it was a forty four year seaman he was a twenty year license captain he had he had owned and operated this this particular vessel this small because it was this is a small vessel whether any of the contributing factors to the injuries such as holding on tight or not grabbing are on or going down or whatever might have notated against the injury yes or that's the question and right so what every boat's different every bit they have a bigger boat you have you have the more modern boats with the big softer cushions in the passenger area the seating in the passenger area this was a little small crew boat that went out and eight foot seas with twenty five to forty knot winds and the person who was in the best position to be finding we're not looking at whether it was their own that you didn't find that so what we're looking at are three breaches one of them is not checking whether and you seem to have said just a little while ago that that's not really the significant part of this cannot just not checking the weather because no actually going out there  below beforehand as it is a separate park but that seems problematic and you can address that if you want but how you dress the way it is is it undisputed that there was to use the alarming phrase of  a friend on the other side a rogue wave is that accepted that he was going the captain was going over certain waves and then that wave coming from a somewhat different angle higher than the rest is what caused the injury what  going down he said in a test on he said that he said he was not there that that you know it just depends on that what point you're doing it but what can't those big chose to do was he went full bridal and he went over the way mr paradela as well as the deck floor but again it was the operational nexts because after the accident kept bostick chose to i don't have the vessel for fifteen to twenty minutes what was the rush there was no rush to get back in for the idle the boat for fifteen to twenty minutes back to back to the little by that they had come out of with no incident in fact the deck in testified it was a smooth ride all the way back there was no reason to  give that vessel full throttle in those oncoming six to eight foot seas you know just say i only have three minutes and i'd like to address the age seventy five issue if i could share is that ok sure let me start by saying that that my sweet father passed away in june and he was seventy seven almost seventy eight years old and he worked up until the day passed away and and in today's day and age most people i believe work as much as they possibly can in mr it because because of financial reasons they have to and some people just want to work because there's no reason said you know the argument that there was there was there was the the argument was made by most of it that the who erred in not going with the bureau of labor statistics which is merely a bias we it gives it gives it gives the court or the trier  fact an average a statistical average is what it is and i read the bartow decision or read the dory i think i'm pronouncing it correctly does decisions and while i understand that that there are other you know in particular case we called mr pear deals employer who testified that they had several other employees just like mr de peridot these these these inspectors who were well over the age seventy five in fact they had a gentleman out there that was working offshore and in his eighty's you know and what we're talking about here is we're talking about the difference between three that gets three point four four years because the bureau of labor statistics work life expectancy from date of trial was to two point zero nine years paid past the pre employment physical he testified that he never missed a day of work he never turned down a job his employer said that he was all that he was always willing to go out on any job this this this was one of these hard and gauging men from from gate all the easy out of that that worked hard and never missed any work and there was nothing that would have prevented him short of this accident from continue to work to age seventy five four of our supreme court justices are over the age of seventy five some are in their eighty's you know it's not uncommon for individuals to work beyond say update seventy five and beyond and there was nothing there was no there was no evidence  was any medical reason that this gentleman could not continue to work day seventy five he had testified that he was in great shape and they had several the witnesses that testified at trial that he was that he was in excellent shape and he was ok fully capable of doing all the all the  madera is to use the average unless there's some compelling reason to the contrary like compelling reasons why don't train actually the compelling there is no compelling reason here when you read what the judge based her opinion on her opinion said i accept what missed chaltain the counselor therapist whatever she was that and she said he would like to work until he seventy five ok that sounds reasonable to me i would like to work until i'm seventy five or eighty years well it doesn't mean i'm going to the reason we have the bureau of labor statistics statistical analysis and the reason that the plaintiff's own expert always uses statistical analysis is because that's what you're supposed to do i mean sir your argument is the to the average to to the average age i mean ever just workable age that the bureau of labor statistics there is a strong presumption as this court has said it's a because they are in fact future looking and not backward looking ok date this to to stick say that we take the american population and we know cold hard reality is people die early people get injured early people become disabled early and yes there are some outliers that pull us up to the ninety's and pull us up to the eighty's into the hundreds but the reason that you go to court with the average is because that's there is no crystal ball that can say that well one judge is going to be able to make it to nineteen months unfortunately passed away at forty or fifty five so we don't know these things and that's why his own expert used statistical analysis until just before the trial when the case didn't settle and he was asked to come up with an alternative and that's what happened but the economists said i don't know whether the man's work in seventy five or not i just look at the statistics the only thing that the judge based it on was child's and said was at trial on question i didn't know about the c o p d i didn't know but these are the conditions i didn't know about all that she did not have a complete health picture on him counseling amish time would you mind addressing the negligence issue that i injury three ways three ways in which what the expert said what the plaintiff's expert says is when you're doing this you you're out there you're the one who knows you start getting on step with it you find up with the rhythm of the waves as you get on the rhythm of the ways that's what the captain doing three waves the business about it being ten or fifteen minutes that's not in the trial record it is not there it was three ways and in fact what mister deck hand said what the pla said is he turned around and through it happened there was not a chance to get into any alternate routes he it was so fast it's you know there's a reasonable period of time to get on staff a reasonable period of time  to do these things it's just like if you have a car accident or a truck accident you're supposed to put out your flashers and your warning cones and everything else but you have to have enough time to get out there to do it if you don't have enough time to get out to do it then you haven't reached a duty that's the same here he turned around three ways and the snap of the fingers was not mine that was the deck and he says man we turned around and boom that happened what the parable said he says and we turned around and you know what hit the fan just just like that testified at trial to that in response to the judge's questioning i'm not really sure what happened out there i'm not even sure what the man was saying so i really don't know his expert opinion is quite suspect which we did address in the brief and i believe