IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-4220

 

DARREYL WAYNE GOUGH,

Plaintiff-Appellee,

Cross-Appellant,

versus

NATURAL GAS PIPELINE CO.

OF AMERICA,

Defendant-Appellant,

Cross-Appellee.

 

Appeals from the United States District Court

for the Eastern District of Texas

 

July 20, 1993

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

When a fishing vessel backed over a natural gas pipeline that

was supposed to have been buried, a fireball swept the ship killing

eleven of its fourteen crew. Her captain, Darreyl Wayne Gough,

survived by fleeing the pilot house and jumping overboard. He sued

the pipeline owner, NGP, under general maritime law. A Beaumont

jury awarded Captain Gough $2 million, but assessed to him 35

percent of the fault for the accident. NGP challenges the damage

award which rested in substantial part on emotional distress. We

are persuaded that Captain Gough suffered a sufficient physical

impact but order a remittitur of damages. We also affirm the

finding of contributory fault, finding the evidence sufficient to
2

support it, rejecting the Captain's claim that an earlier finding

in a limitation proceeding that NGP was solely at fault was

binding.

I

On October 3, 1989, Zapata Haynie Corporation's steamer F/V

Northumberland was operating near Sabine Pass. Darreyl Wayne Gough

captained the vessel as it fished for menhaden roughly one-half

mile from the Texas coast. The Captain had previously fished in

the same area of the coast during the 1988 and 1989 fishing

seasons. He did not consult navigational charts on October 3; he

claimed to know that coastline "like the back of [his] hand."

Late that afternoon, when the Northumberland deployed its

purse boats, radar showed that it was one-half mile from shore.

Captain Gough's cousin Mac Gough was in charge of the ship while

Captain Gough was in a purse boat. Mac Gough thought that the

Northumberland was floating freely, not touching bottom, because

the ship moved without hindrance. He admitted that it was possible

for the ship to skim through the soft mud bottom of Sabine Flats

without being felt on deck. After the set, Captain Gough returned

to the pilot house of the Northumberland. The ship's bow was

pointed toward the shore. Around 5:45 p.m., Captain Gough began

backing the ship away from the beach at what Mac Gough described as

moderate speed. All three survivors, Captain Gough, Mac Gough, and

crew member Arthur Jackson, testified that the ship did not touch

bottom.
3

After backing three hundred feet, the Northumberland suddenly

stopped. There was an immense explosion. The ship struck and

ruptured NGP's submerged sixteen-inch diameter gas pipeline.

Within seconds, a fireball swept the ship from stern to bow. The

Captain and Mac Gough escaped the pilot house, jumped overboard,

and swam away from the heat and flames. Spotter helicopters

dropped rafts and tried to assist survivors. Captain Gough tried

to assist one injured seaman who slipped away and drowned. Eleven

crew members died; Mac Gough and Jackson were severely burned. All

three survivors were pulled from the water and airlifted to a

Beaumont hospital by helicopter.

Captain Gough was in the hospital for only two days, but soon

began experiencing nightmares, flashbacks, and depression.

Psychiatrists and psychologists diagnosed post-traumatic stress

disorder, and Captain Gough began therapy. One expert testified

that post-traumatic stress disorder typically requires two to three

years of treatment. Captain Gough's therapist testified that the

demands of various lawsuits continue to aggravate Captain Gough's

condition and delay recovery. She was uncertain how long it would

take before Captain Gough could function adequately, and noted that

the memories of this event will remain the rest of his life.

Captain Gough claimed that as a result of the post-traumatic

stress disorder, he was unable to return to work as a mariner. He

now earns his living, for less pay, as a carpenter. An economist

testified that this diminished earning capacity resulted in a total

pecuniary loss of $559,401.
4

The NGP pipeline was unmarked. The Corps of Engineers permit

issued to NGP in 1972 required that the pipeline be buried three

feet under the seabed and that NGP maintain it in accordance with

the plans. Three days after the accident a diver inspected the

pipeline and found it exposed for more than fifty feet between the

point at which the Northumberland sank and the shore; it was

exposed for more than three hundred feet farther out to sea. In

places, nearly half of the pipe's diameter was unburied.

NGP elicited testimony suggesting that Captain Gough's

handling of the ship could have led to the allision.

On a previous occasion, the Northumberland's anchor had gotten

hung up on a submerged five-inch pipeline after the ship was

anchored overnight. The anchor picked up the pipeline, but came

free after it was lowered again. Mac Gough testified that Captain

Gough occasionally got into the mud, rather than always maintaining

a margin between the keel and bottom. The Northumberland was not

equipped with a fathometer. Coastline charts feature a warning

concerning submerged pipelines. National Ocean Service chart 11342

states: "Caution . . . Additional uncharted submarine oil and gas

pipelines and submarine cables may exist within the area of this

chart. Mariners should use caution when anchoring, dragging or

trawling." Captain Gough admitted that he was familiar with this

warning.

The six-person jury deliberated for eighty-two minutes. In a

note to District Judge Fisher, the jury asked whether it could
 

1Judge Fisher replied that it could award no more for lost

earnings than the evidence established, but could award whatever

amount necessary to justly compensate Captain Gough for his pain

and suffering or mental anguish.

 

2The jury did not find gross negligence, precluding the

award of punitive damages.

 

3We note that the en banc court also referred to the rule in

disjunctive terms: physical injury or impact. Plaisance, 966

F.2d at 168; see also id. at 169 (Politz, C.J.) ("physical injury

or contact").

5

award Captain Gough more than he asked for.1 It then found both

NGP and Captain Gough negligent and responsible for the accident.

The jury assigned them 65 and 35 percent of the fault,

respectively. The verdict then awarded Captain Gough $2,000,000 in

total damages.2

II

Captain Gough's physical injuries had little compensable

value. He presented evidence of economic loss, but the principal

basis on which the Captain sought damages was the emotional

distress associated with post-traumatic stress disorder. NGP

contends that the maritime law does not permit recovery for purely

emotional damages. We think that this assertion is too broad.

Beyond question, purely emotional injuries will be compensated

when maritime plaintiffs satisfy the "physical injury or impact

rule." Plaisance v. Texaco, Inc., 966 F.2d 168-169 (5th Cir. 1992)

(en banc). Either a physical injury or physical impact has

traditionally been required. See Hagerty v. L & L Marine Services,

Inc., 788 F.2d 315, 318 (5th Cir. 1986).3 Hagerty, a Jones Act

case, questioned the wisdom of this rule, but found that the
6

plaintiff suffered both a physical impact and injury. Id. at 318

& n.1. 

The impact or injury rule is an arbitrarily stated rule with

important functions. One purpose is "to provide courts with an

objective means of ensuring that the alleged mental injury is not

feigned." Hagerty, 788 F.2d at 318. A more important purpose of

the rule is to provide a principled basis for limiting liability.

Traumatic events may cause foreseeable emotional distress through

a broad range of time and space. Jurisdictions that apply

expansive recovery rules such as the bystander theory must depend

upon proximate cause to define the boundary of liability. We are

wary of such ad hoc adjudication and prefer predictable rules for

the determination of liability. Cf. State of Louisiana ex rel.

Guste v. M/V Testbank, 752 F.2d 1019, 1028-29 (5th Cir. 1985) (en

banc) (requiring physical injury to proprietary interest for

recovery of economic damages in admiralty). The bright line impact

or injury rule performs a similar function.

NGP misplaces its reliance on Gaston v. Flowers Transp., 866

F.2d 816 (5th Cir. 1989). The plaintiff in that Jones Act case

watched as his half-brother was crushed between two colliding

vessels. The plaintiff himself suffered only a bruised elbow when

he fell to the deck. He did not consider himself to be in danger.

The plaintiff, diagnosed with post-traumatic stress disorder,

sought damages for his emotional distress. He did not establish

that he had suffered a physical impact or significant physical
7

injury. His only claim was for emotional distress caused by

witnessing his brother's death.

Gaston dismissed as dictum the suggestion in Hagerty that

emotional distress recovery might occur without physical injury or

impact. Id. at 819 (quoting Hagerty, 788 F.2d at 318). The Gaston

plaintiff, a mere bystander, could not recover for his emotional

distress. Id. at 820. Left open is the question whether a

plaintiff may recover under the zone of danger theory. Id.; see

also Plaisance, 966 at 169.

NGP emphasizes that Gaston described the plaintiff's bruised

elbow as "only [a] trivial physical injury." Insisting that

Captain Gough's physical injuries are no more substantial, NGP

maintains that Gaston's denial of recovery controls this case. NGP

understates the evidence of Captain Gough's injuries and the nature

of his experience. Captain Gough was located in the pilot house

when the steamer allided with NGP's pipeline. Within seconds,

flames spread towards Captain Gough. He could feel the heat, and

immediately after he left the pilot house fire engulfed it. To

avoid the flames, Captain Gough had to jump overboard into the Gulf

of Mexico. Even in the water, the heat was unbearable, and Captain

Gough inhaled fumes from the fire. He also ingested salt water, as

another victim of the disaster pulled him underwater. Besides

being submerged in the ocean, Captain Gough suffered multiple

contusions. Finally, some testimony suggests that Captain Gough

suffered from minor burns, although no medical record confirmed

these opinions.
8

Keeping in mind its purpose, these facts meet the impact test.

Emotional distress damages were awarded to a seaman on this basis

in Petition of United States, 418 F.2d 264 (1st Cir. 1969). A

Coast Guard vessel was towing Roberts' boat when it ran aground,

capsized, and sank. Roberts was forced into the sea, where he

remained for more than thirty minutes before being rescued by the

Coast Guard vessel. The court allowed Roberts to recover for

emotional distress, stating:

The grounding of the B & G resulted in a substantial jolt

to Roberts and he was thrown into the water as the boat

capsized. Both these impacts were caused by the

negligence of the [Coast Guard] and were sufficient to

satisfy the test applied by jurisdictions following the

impact rule.

Id. at 268.

Our precedent also supports the conclusion that Captain Gough

has suffered the requisite impact. In Hagerty, the seaman was

drenched with toxic and carcinogenic chemicals. At the time, he

felt dizziness, leg cramps, and stinging in his extremities. As a

result of this accident, he developed cancerphobia. We held that

drenching with chemicals constituted a sufficient impact to support

the recovery of emotional distress damages. Hagerty, 788 F.2d at

318 n.1. The proof of impact, and of physical injury, is even more

convincing in the present case.

Unlike Gaston, this accident caused Captain Gough far more

harm than a fall to the deck and a bruise. Captain Gough suffered

both a physical impact and tangible physical injuries as a

foreseeable result of NGP's negligence.
 

4Such verdicts have been variously described: so gross or

inordinately large as to be contrary to right reason; shocking

the judicial conscience; clearly exceeding that amount that any

reasonable person could feel claimant is entitled to; or so

exaggerated as to indicate bias, passion, prejudice, corruption,

or other improper motive. See Caldarera, 705 F.2d at 784.

9

Captain Gough argued that if the impact rule was not

satisfied, he could nonetheless recover for emotional distress

because he was within the zone of danger. We have repeatedly

declined to adopt or preclude the zone of danger theory. See

Gaston, 866 F.2d at 820; Plaisance v. Texaco, Inc., 966 F.2d 166,

169 (5th Cir. 1992) (en banc); Ainsworth v. Penrod Drilling Corp.,

972 F.2d 546, 548 (5th Cir. 1992). Since Captain Gough may recover

on another basis, we once more leave this question open.

III

NGP also complains that the jury verdict must be set aside as

excessive. The district court denied NGP's motion for new trial,

which contended that the award of $2,000,000 was beyond any

reasonable bound.

The jury's assessment of damages is heavily weighted against

appellate reconsideration. We do not disturb a jury verdict for

excessiveness except on the strongest of showings. Even so,

"[t]he sky is simply not the limit for jury verdicts." Caldarera

v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983). The

verdict will not stand if it is entirely disproportionate to the

injury sustained. Id.4 When a jury's award exceeds the bounds of

any reasonable recovery, we must suggest a remittitur ourselves or

direct the district court to do so. In that case, we reduce the
10

verdict to the maximum amount the jury could properly have awarded.

Id.

We will consider any quantifiable evidence of pecuniary loss.

The principal basis of relief, however, was emotional distress--an

inherently subjective matter. Our reassessment cannot be entirely

supported by rational analysis, and must depend upon experience and

judgment. See id.; Osburn v. Anchor Laboratories, Inc., 825 F.2d

908, 920 (5th Cir. 1987). We may also look to the "rough guidance"

of awards for similar injuries in recent cases. Osburn, 825 F.2d

at 920; Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1427 (5th

Cir. 1988).

In this case, the jury's general damage award of $2,000,000

included the following elements: lost past and future earnings,

pain and suffering, mental disability and mental anguish. An

economist valued Captain Gough's lost earnings at $559,401. NGP

concedes that this much of the damage award is unassailable.

Captain Gough's physical injuries resolved within days of the

accident. While these injuries were real and tangible, we conclude

that their compensable value is negligible. Thus, the remainder of

the verdict ($1,444,599) must be supported by the evidence of

mental disability and mental anguish.

Captain Gough narrowly escaped a harrowing disaster with minor

physical injuries. He suffers, however, from on-going emotional

distress in the form of post-traumatic stress disorder. The

disorder typically resolves in two to three years, but experts were

unable to predict the resolution of Captain Gough's condition.
11

Testimony suggests its perpetuation by Captain Gough's involvement

in lawsuits arising from the accident.

Other cases show virtually no satisfying analogues to Captain

Gough's injuries. Many post-traumatic stress disorder patients

also suffered severe physical injuries; others were themselves

neither injured nor endangered. Captain Gough falls between these

extremes. Perhaps the best guidepost involves the survivor of a

gas-leak explosion that destroyed a house in Illinois. DeYoung v.

Alpha Constr. Co., 542 N.E.2d 859 (Ill. App. 1989). The explosion

threw the plaintiff 75 feet out of her home and into a neighbor's

yard, bruising the left side of her body, fracturing three teeth,

and requiring stitches for her mouth, lips, and chin. Her mother

was killed. Afterward, the plaintiff experienced insomnia,

depression, and anxiety and was diagnosed with post-traumatic

stress disorder. The court affirmed an award of $500,000 for the

plaintiff's noneconomic damages. Id. at 864.

We must rely upon our judgment to determine the maximum amount

the jury could properly have awarded. See Caldarera, 705 F.2d at

784 (stating the "maximum recovery" rule). Considering the

circumstances of the accident and the evidence of mental anguish

and disability, $600,000 represents the maximum reasonable award

for emotional distress. Adding the economic damages of $559,401,

the verdict must be reduced to $1,159,401, less the reduction for

contributory fault. We therefore order a new trial unless Captain

Gough will accept a remittitur amending the judgment to the amount

of $753,610.65.
12

IV

The district court denied Captain Gough's motion for a

judgment notwithstanding the jury's verdict that he was 35 percent

at fault. We review this decision under the familiar standard of

Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). To

prevail, Captain Gough must show that the facts and inferences

point so strongly and overwhelming in his favor that reasonable

persons could not arrive at a contrary verdict. Id. at 374.

The jury heard that the depth of the water at spots around the

Northumberland, three days after the accident and near the same

time of day, measured eight and nine feet. The steamer's draft was

described as nine or ten feet. Captain Gough did not employ a

depth meter. NGP argued that Captain Gough acted unreasonably by

either dragging through the mud bottom or failing to maintain a

margin of safety under the keel of his ship.

Captain Gough denies touching bottom. All three survivors

testified to floating freely, although Mac Gough said that the ship

could move through soft mud without hindrance. The pilot of the

spotter plane did not see a trail of mud to indicate dragging.

Captain Gough also defended his conduct by asserting that all

submerged pipelines were assumed to be safely buried beneath the

seabed. He knew that there were pipelines in the vicinity, but

assumed that they could not be hit. He also initially stated that

he had never heard of any ship hitting a pipeline, despite fishing

in the area for thirteen seasons. Finally, Captain Gough maintains
13

that the non-use of charts was causally unrelated because the NGP

pipeline was not accurately charted.

Nonetheless, some evidence supports the reasonable conclusion

that caution was in order. Charts of the coastline warned of

uncharted pipelines and advised that "Mariners should use caution

when anchoring, dragging or trawling." On cross-examination,

Captain Gough admitted knowing that the Zapata Haynie vessel Sea

Chief had struck a pipeline in Mississippi waters. His own ship

had lifted a five-inch pipeline from the bottom with its anchor.

Captain Gough replaced it on the seabed and therefore knew that it

was not buried. There is ample evidence by which a reasonable

factfinder could conclude that Captain Gough's conduct contributed

to this tragedy.

Captain Gough also attacks the contributory fault finding by

contending that he had no duty to avoid the pipeline. Starting

with the premise that NGP's unburied pipeline created an obstacle

to navigation, Captain Gough concludes that the priority of

navigation demands that NGP bear sole responsibility for the

allision. "[Plaintiff] is incorrect, however, to assert that this

right of navigation is wholly unfettered: when a mariner knows of

obstructions to navigation, he must avoid them." Pennzoil

Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1470 (5th

Cir. 1991). The presumption of fault of The Pennsylvania, 86 U.S.

(19 Wall.) 125 (1874), does not control the allocation of fault

where several parties are responsible; the rules of comparative

fault still apply. Pennzoil, 943 F.2d at 1472. The record shows
14

that Captain Gough could foresee the danger posed by unburied

pipelines. A duty therefore arose, and the district court properly

submitted the issue of Captain Gough's fault to the jury.

V

Captain Gough also maintains that the question of his

contributory negligence should not have been submitted to the jury.

He seeks to bind NGP with a district court finding from the Western

District of Louisiana that NGP is solely responsible for the

accident. Captain Gough's employer, Zapata Haynie, filed a

limitation action in that court regarding the Northumberland.

Captain Gough did not join that action. NGP and the

representatives of other victims of the accident contested Zapata's

right to limitation or exoneration. In particular, NGP attempted

to show that Captain Gough's errors contributed to the accident.

Following a three-week bench trial, District Judge Walter found

that NGP's negligence was the sole cause of the accident. On

appeal, we held that this finding was not clearly erroneous.

Zapata Haynie Corp. v. Arthur, 980 F.2d 287 (1992).

While Captain Gough was not a party to the previous action,

NGP was and so Captain Gough now invokes the doctrine of issue

preclusion, also known as offensive collateral estoppel. Captain

Gough complains that the jury's finding of fault is inconsistent

with Judge Walter's finding. Captain Gough did not, however,

assert collateral estoppel below, even though Judge Walter ruled
 

5Judge Walter's judgment had preclusive effect during the

pendency of its appeal. Erebia v. Chrysler Plastic Prods. Corp.,

891 F.2d 1212, 1215 n.1 (6th Cir. 1989); Nixon v. Richey, 513

F.2d 430, 438 n.75 (D.C. Cir. 1975); cf. Huron Holding Corp. v.

Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941).

 

6At oral argument, Captain Gough contended that he objected

to submitting the contributory fault issue to the jury on this

basis. Captain Gough failed to get this objection into the

record and we may not rely upon it.

15

seven months before Captain Gough's trial.5 Captain Gough

mentioned Judge Walter's findings in his pretrial Memorandum of

Authorities. Captain Gough did not, however, request that those

findings be given preclusive effect. Nor did he mention Judge

Walter's findings in his motion for judgment notwithstanding the

verdict of contributory fault.6

The offensive use of collateral estoppel is permitted, but

limited by judicial discretion. Parklane Hosiery Co. v. Shore, 439

U.S. 322, 331, 99 S. Ct. 645, ---, 58 L. Ed. 2d 552 (1979). Courts

hesitate to allow "wait and see" plaintiffs to benefit from

offensive collateral estoppel after failing to present their claims

in the prior litigation. See, e.g., Hauser v. Krupp Steel

Producers, Inc., 761 F.2d 204, 207 (5th Cir. 1985).

The general rule should be that in cases where a

plaintiff could easily have joined in the earlier action

or where . . . for other reasons, the application of

offensive estoppel would be unfair to a defendant, a

trial judge should not allow the use of offensive

collateral estoppel.

Parklane, 439 U.S. at 331, 99 S. Ct. at ---.

NGP contends that Captain Gough could have joined the

limitation action. Captain Gough responds that participation would

have been self-defeating because, as master of the Northumberland,
16

evidence suggesting Zapata Haynie's fault also suggested his own

fault. NGP maintains that Captain Gough did not join the previous

action because he settled with the ship owner. The record does not

indicate when that settlement occurred. The uncertainty of this

issue reflects the critical problem with Captain Gough's position--

he failed to raise it below by drawing attention to issue

preclusion.

Captain Gough objects to the resulting inconsistent fact

findings, but collateral estoppel would not eliminate the

inconsistent decisions. See Jack Ratliff, Offensive Collateral

Estoppel and the Option Effect, 67 Texas L. Rev. 63, 100 (1988).

They happen--and once inconsistent decisions have been reached,

none may be given preclusive effect. Parklane, 439 U.S. at 330-31

& n.14. Prof. Ratliff observed that "efficiency is [offensive]

collateral estoppel's only true justification." Option Effect,

supra, at 101. It is too late to invoke the virtue of efficiency

when the case has already been tried.

We are not persuaded that the district court committed

reversible error in submitting the issue of Captain Gough's fault

to the jury. Captain Gough failed to address the issue as one of

collateral estoppel in the district court. Even reviewing it as

such, there is no showing that the court abused its discretion in

declining to give Judge Walter's findings preclusive effect. In

short, Captain Gough has failed to show an injustice.

In a related argument, Captain Gough asserts that affirming

the jury's finding of contributory fault would violate our rule
17

that one panel cannot overturn another. This assertion is

meritless. In Zapata Haynie, we held that Judge Walter's finding

that NGP was solely responsible for the accident was not clearly

erroneous. 980 F.2d at 292. By affirming the jury's findings here

we do not upset any rule of law stated in Zapata Haynie.

We affirm the district court in all respects except we remand

with instruction to grant a new trial unless plaintiff accepts the

remittitur we order today.

AFFIRMED in part and REMANDED.