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 UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

JEFFREY TODD KNUDSON, 

 

 Plaintiff, 

 Case No. 14-CV-14854 

vs. 

 HON. GEORGE CARAM STEEH 

M/V AMERICAN SPIRIT, et al., 

 Defendants. 

_____________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANTS’ MOTION FOR PARTIAL JUDGMENT ON THE 

PLEADINGS [DOC. 60], DENYING WITHOUT PREJUDICE 

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 

DISMISSING CERTAIN AFFIRMATIVE DEFENSES [DOC. 58], DENYING 

DEFENDANTS’ MOTION TO BIFURCATE [DOC. 61] AND 

SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’ 

OBJECTIONS TO ORDER GRANTING MOTION TO COMPEL [DOC. 74] 

 This matter arises out of personal injuries allegedly sustained by 

Plaintiff Jeffrey Todd Knudson in the service of his employer, Defendant 

Liberty Steamship Company (“Liberty”), while serving aboard a Great 

Lakes freighter owned by Defendant American Steamship Company 

(“American”). The case is before the court on defendants’ motion for partial 

judgment on the pleadings or partial summary judgment, plaintiff’s motion 

for partial summary judgment dismissing certain affirmative defenses, 
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defendants’ motion to bifurcate, and defendants’ objections to the 

magistrate judge’s order granting plaintiff’s motion to compel. 

 FACTUAL BACKGROUND 

 Mr. Knudson was hired by Liberty as a permanent replacement 

worker in March of 2011 after LSC’s negotiations with the union 

representing LSC’s unlicensed seamen failed to reach a collective 

bargaining agreement. Knudson was a non-union employee. 

On January 11, 2012, Mr. Knudson was serving as a General Vessel 

Utility, or deckhand, aboard M/V AMERICAN INTEGRITY. The vessel was 

approaching the locks at Sault Ste. Marie, Michigan and Knudson was 

tasked with going over the side of the vessel to the concrete dock at the 

locks below in order to moor the vessel as it passed through the locks. 

Vessel crew members were lowered from the deck of the vessel to the 

dock face below by way of a bosun’s chair. One of the vessel’s officers 

controls the crew member’s descent in the bosun’s chair by way of a line 

wrapped numerous times through a cleat on the deck of the vessel. This 

process is routine for a seaman and is performed every time any Great 

Lakes freighter passes through the locks, takes on fuel, or calls at nearly 

any dock. Mr. Knudson had performed this task on numerous occasions. 
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 On the day in question, another deckhand, Todd Wilde, was put over 

the side of the vessel and lowered to the dock without incident. Mr. 

Knudson was then prepared to go over the side and join his crewmate. 

The vessel’s first mate handling the line that day was Mr. Olney. During 

the procedure, one wrap of the line came free of the cleat, causing 

Knudson’s descent to the dock, 30 to 35 feet below, to be more rapid than 

it should have been. The line is wrapped around the cleat several times, 

and in this instance one wrap came free. While Knudson landed on his 

feet on the dock face, he contends he was injured as a result of the 

incident. 

 Since the incident, Knudson has been restricted from further duty, 

and has been paid maintenance benefits and travel expenses. For the first 

two years American paid Knudson at the rate of $8 per day, which was the 

rate provided in Knudson’s non-union, non-collectively bargained contract. 

Knudson contends that he was forced to live with his father, as he could not 

support himself on $8 per day. When Mr. Knudson complained that $8 was 

not enough to live on, defendants allegedly provided a Claims Arbitration 

Agreement (“CAA”) for him to sign whereby he would acknowledge that 

defendants were obligated to pay $8 per day in maintenance and he would 

relinquish his right to a jury trial. Mr. Knudson refused to sign the CAA. 
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 After two years, Mr. Knudson supplied defendants with proof of his 

shared living expenses and demanded a maintenance rate of $45 per day. 

Defendants ultimately agreed to pay $45 per day, retroactive to the date of 

the incident. In all, defendants have paid Mr. Knudson maintenance 

benefits and travel expenses in excess of $96,000. Defendants have also 

paid Knudson for all out-of-pocket medical expenses and medical bills, 

totaling over $89,000. 

I. Defendants’ Motion for Partial Judgment on the Pleadings or 

Alternatively Motion for Partial Summary Judgment 

A. Legal Standard 

1. Rule12(c) Judgment on the Pleadings 

A motion for judgment on the pleadings under Federal Rule of Civil 

Procedure 12(c) is reviewed under the same standard as a motion to 

dismiss under Federal Rule of Civil Procedure 12(b)(6). See e.g., 

Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir. 

2008). Rule 12(b)(6) allows the Court to make an assessment as to 

whether the plaintiff has stated a claim upon which relief may be granted. 

Under the Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the Court must 

construe the complaint in favor of the plaintiff, accept the allegations of the 

complaint as true, and determine whether plaintiff’s factual allegations 
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present plausible claims. “[N]aked assertions devoid of further factual 

enhancement” are insufficient to “state a claim to relief that is plausible on 

its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To survive a Rule 

12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide “more 

than labels and conclusions, and a formulaic recitation of the elements of a 

cause of action will not do.” Ass’n of Cleveland Fire Fighters v. City of 

Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic, 550 

U.S. at 555) (citations and quotations omitted). Even though the complaint 

need not contain “detailed” factual allegations, its “factual allegations must 

be enough to raise a right to relief above the speculative level on the 

assumption that all of the allegations in the complaint are true.” Id. (citing

Bell Atlantic, 550 U.S. at 555). 

2. Rule 56 Summary Judgment 

Federal Rule of Civil Procedure 56(c) empowers the court to render 

summary judgment "forthwith if the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law." See Redding v. St. 

Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has 

affirmed the court's use of summary judgment as an integral part of the fair 
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and efficient administration of justice. The procedure is not a disfavored 

procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); 

see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 

1995). 

The standard for determining whether summary judgment is 

appropriate is "'whether the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so one-sided that one party 

must prevail as a matter of law.'" Amway Distributors Benefits Ass’n v. 

Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all 

reasonable inferences must be construed in the light most favorable to the 

non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he 

mere existence of some alleged factual dispute between the parties will not 

defeat an otherwise properly supported motion for summary judgment; the 

requirement is that there be no genuine issue of material fact." Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); 

see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 

(6th Cir. 2001). 
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If the movant establishes by use of the material specified in Rule 

56(c) that there is no genuine issue of material fact and that it is entitled to 

judgment as a matter of law, the opposing party must come forward with 

"specific facts showing that there is a genuine issue for trial." First Nat'l 

Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 

988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations 

or denials in the non-movant's pleadings will not meet this burden, nor will 

a mere scintilla of evidence supporting the non-moving party. Anderson, 

477 U.S. at 248, 252. Rather, there must be evidence on which a jury 

could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing 

Anderson, 477 U.S. at 252). 

B. Jones Act 

Under maritime law, the Jones Act authorizes seamen to maintain 

negligence actions for personal injury suffered in the course of 

employment. 46 U.S.C. § 688. It is the maritime plaintiff’s employer who 

has a duty to provide a safe workplace. Churchwell v. Bluegrass Marine, 

Inc., 444 F.3d 898, 907 (6th Cir. 2006). Recovery under the Jones Act is 

therefore only available to a seaman against the seaman’s employer. 

Liberty is Knudson’s employer, while American is the owner of the vessel 

but is not the employer. American moves for judgment as a matter of law 
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in its favor on Knudson’s Jones Act claim. In its reply brief, Knudson 

concedes it has no viable Jones Act claim against American. 

However, plaintiff moves for leave to amend to plead a cause of 

action for negligence against American as a third party. Plaintiff recently 

took the Rule 30(b)(6) deposition of American’s chief operating officer, Mr. 

McMonagle, who revealed for the first time that the first mate who allegedly 

dropped plaintiff was an employee of American (not Liberty), subjecting 

American to vicarious liability for the actions of the first mate. Plaintiff may 

amend his complaint as requested to allege negligence against American 

based on the fact that its employee was the one who was operating the 

bosun chair when plaintiff was dropped. 

C. Unseaworthiness 

A shipowner owes the seamen employed on its vessel an absolute, 

nondelegable duty to provide a seaworthy vessel. Harbin v. Interlake S.S. 

Co, 570 F.2d 99, 103 (6th Cir. 1978). Liberty moves for judgment as a 

matter of law on plaintiff’s unseaworthiness claim for the reason that it is 

not the vessel owner. Plaintiff concedes that it has no viable claim for 

unseaworthiness against Liberty. 

Judgment as a matter of law is granted in favor of Liberty on plaintiff’s 

unseaworthiness claim. 
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D. Punitive Damages 

1. Maintenance and Cure 

As a general rule, damages recoverable under the Jones Act or 

general maritime doctrine of unseaworthiness are limited to pecuniary 

losses only. See Miles v. Apex Marine Corp., 489 U.S. 19 (1990). Almost 

thirty years after deciding Miles, the Supreme Court recognized an 

exception to the general rule and permitted the recovery of punitive 

damages for the willful failure to provide adequate maintenance and cure 

benefits under general maritime law. Atlantic Sounding Co., Inc. v. 

Townsend, 557 U.S. 404 (2009). The Townsend Court recognized that 

Miles dealt with a wrongful death action, and that Congress chose to limit 

the damages available for wrongful death actions under two statutes: the 

Jones Act and the Death on the High Seas Act. In differentiating 

maintenance and cure benefits from wrongful death in the maritime context, 

the Townsend Court pointed out that the only reason a general federal 

cause of action for wrongful death on the high seas and in territorial waters 

existed was because of congressional action. 

As a result, to determine the remedies available under the 

common-law wrongful-death action, “an admiralty court should 

look primarily to these legislative enactments for policy 

guidance.” Miles, 498 U.S. at 27, 111 S.Ct. 317. It would have 

been illegitimate to create common-law remedies that 

exceeded those remedies statutorily available under the Jones 
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Act and DOHSA. See id., at 36, 111 S.Ct. 317 (“We will not 

create, under our admiralty powers, a remedy ... that goes well 

beyond the limits of Congress' ordered system of recovery for 

seamen's injury and death”). 

Townsend, 557 U.S. at 420. 

In holding that punitive damages are available for common-law claims 

for maintenance and cure, Townsend started by observing that the Jones 

Act created a statutory cause of action for negligence, but did not eliminate 

pre-existing remedies available to seamen for the separate common-law 

cause of action based on the right to maintenance and cure. 557 U.S. at 

415. The Court recognized the relevant difference between the situation 

presented in Miles, statutory wrongful death, and cases involving 

maintenance and cure as being that “both the general maritime cause of 

action (maintenance and cure) and the remedy (punitive damages) were 

well established before the passage of the Jones Act.” Id. In addition, the 

Jones Act does not address maintenance and cure or its remedy. 

Therefore, it is possible to award punitive damages for common-law 

maintenance and cure while adhering to the traditional understanding of 

maritime actions and remedies, to which Congress has not directly spoken, 

without violating the Jones Act. Id. at 420-21. 

The Townsend Court concluded that punitive damages are available 

for the “willful or wanton failure to comply with the duty to pay maintenance 
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and cure.” Id. at 422. “Maintenance and cure is designed to provide a 

seaman with food and lodging when he becomes sick or injured in the 

ship’s service; and it extends during the period when he is incapacitated to 

do a seaman’s work and continues until he reaches maximum medical 

recovery.” Vaughan v. Atkinson, 369 U.S. 527, 531 (1962). The employer 

has an affirmative duty to promptly investigate any claim for maintenance 

and cure and resolve any doubts as to entitlement in favor of the seaman, 

promptly paying any amounts due. See, e.g., American Seafoods Co. v. 

Nowak, 2002 WL 31262105 (W.D. Wa. 2002). General maritime law 

provides recovery for the delayed or improper provision of maintenance 

and cure. Townsend, 557 U.S. at 418. 

In this case, plaintiff concedes that defendants eventually provided a 

proper amount of maintenance, but argues he is entitled to punitive 

damages because they wilfully and egregiously delayed making such 

payments. In support, plaintiff points out that when he told defendants that 

$8 a day was insufficient, they said that they were not able to pay him more 

unless he signed a Claims Arbitration Agreement, acknowledging that $8 a 

day was all defendants were required to pay and waiving his right to a jury 

trial. 
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 Defendants respond that plaintiff is not entitled to maintenance in the 

first place, let alone to punitive damages, because he resided with his 

father and did not incur any living expenses. The cases cited by 

defendants in support of this proposition involve plaintiffs who were entitled 

to free room, board and medical attention at merchant marine hospitals, but 

decided to live with family and seek maintenance payments instead. See 

Johnson v. United States, 333 U.S. 46, 50 (1948). Merchant marine 

hospitals no longer exist, so these cases are no longer good law for the 

proposition cited by defendants. 

 Plaintiff is a 52 year old adult who claims he was forced to live with 

his father out of economic necessity. Plaintiff admits that he did not pay 

rent or utilities, but contends he had an agreement with his father to 

reimburse him for the support provided. 

 The court finds that there is an issue of fact whether defendants 

acted in bad faith with regard to the delay in paying maintenance benefits. 

Similarly, there is an issue of fact whether plaintiff had an arrangement with 

his father to pay him back for living expenses when he was able to do so. 

2. Unseaworthiness 

This court is bound by Sixth Circuit precedent which states that 

punitive damages are not available in general maritime unseaworthiness 
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actions. Miller v. American president Lines, Ltd., 989 F.2d 1450 (6th Cir. 

1993). 

E. Conclusion 

For the reasons discussed above, defendants’ motion for partial 

judgment on the pleadings is denied as to punitive damages for 

maintenance and cure and granted as to punitive damages for 

unseaworthiness. Defendants’ motion for summary judgment on punitive 

damages is denied because there is an issue of fact whether plaintiff 

incurred living expenses for which he would be entitled to recover 

maintenance benefits and whether defendants were willful in delaying their 

payment of reasonable maintenance. 

II. Plaintiff’s Motion for Partial Summary Judgment on Affirmative 

Defenses 

Plaintiff submitted his First Discovery Requests, consisting of 

Interrogatories, Requests for Production and Requests for Admission on 

March 13, 2015. Included in the discovery was the request to admit if there 

were no grounds for defendants’ affirmative defenses, or to provide 

evidence in support. Defendants deferred, asking to wait until discovery 

was complete. Plaintiff filed this motion for partial summary judgment on 

the following affirmative defenses at the close of discovery. 
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A. Comparative Negligence 

Defendants stipulate to dismiss this affirmative defense. 

B. Act of Third Party 

In their response brief to the pending motion for partial summary 

judgment, defendants assert for the first time that if plaintiff suffers from a 

traumatic brain injury, as he claims, then plaintiff’s medical providers may 

be responsible for failing to timely diagnose and properly treat said brain 

injury. Plaintiff responds that raising the argument that he is the victim of 

medical malpractice for the first time after discovery has closed is 

prejudicial. 

 The court denies plaintiff’s motion for summary judgment on this 

affirmative defense without prejudice. If plaintiff is claiming that defendants 

have committed some form of discovery abuse, this ruling would not 

preclude him from renewing the request as a stand-alone motion for the 

court to consider. As it stands, however, the issue is too underdeveloped 

to provide a conclusive ruling. 

C. Failure to State a Claim 

The court denies plaintiff’s motion for summary judgment on this 

affirmative defense. This affirmative defense is the basis of defendants’ 

motion for judgment on the pleadings, which the court addresses above.
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D. Failure to Mitigate 

At oral argument, plaintiff conceded that he should have been looking 

for work earlier, at the time he reached maximum medical improvement in 

2016. Plaintiff’s motion for summary judgment on this affirmative defense 

is denied. 

E. Prior Existing Medical Condition 

Plaintiff’s medical records, as well as the opinions of medical experts, 

include references to plaintiff’s prior medical conditions, including: 

hypomania, attention deficit hyperactivity disorder, anxiety disorder, family 

problems, recurrent otitis media externa, alcohol and tobacco abuse, and 

chronic pain disorder due to unrelated emotional factors. Defendants 

argue that a jury should be able to determine whether the plaintiff’s claimed 

injuries and damages stem from the negligence of defendants or whether 

they are the consequence of his preexisting medical conditions. 

Defendants did not respond to any of plaintiff’s discovery requests 

focused on the affirmative defense of prior medical conditions while 

discovery was still open. Defendants also have not tied any alleged 

preexisting medical condition to plaintiff’s injuries sustained on the vessel. 

It is not clear if plaintiff is seeking summary judgment based on 

discovery abuses under Rule 37, or on some other ground. The court will 
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consider such a motion if properly framed and fully developed. As it 

stands, plaintiff’s motion for partial summary judgment on this affirmative 

defense is denied without prejudice. 

F. Act of God 

Defendants stipulate to dismiss this affirmative defense. 

G. Unavoidable Accident 

The Jones Act provides a seaman with a right of action against his 

employer for personal injuries sustained in the course of employment as a 

result of the employer’s negligence, but not due to an accident. There is 

an issue of fact in this case whether plaintiff suffered injuries due to 

defendants’ negligence, or whether it was an accident. With regard to 

whether the jury should be given an unavoidable accident instruction, the 

court can revisit the issue after it hears the evidence presented at trial. 

Plaintiff’s motion is denied as to this affirmative defense. 

H. Laches 

Defendants stipulate to dismiss this affirmative defense. 

I. Statute of Limitations 

Defendants stipulate to dismiss this affirmative defense. 
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J. Defendants’ Motion to Bifurcate 

Defendants move the court to bifurcate plaintiff’s punitive damages 

claim for purposes of trial until he first establishes liability and entitlement to 

compensatory damages. Defendant alleges that plaintiff’s punitive 

damages claim will not be ripe unless a jury determines plaintiff was 

entitled to maintenance. If so, then plaintiff must establish that defendants 

willfully and wantonly disregarded their obligation to pay maintenance 

benefits in order to be entitled to punitive damages. 

 Federal Rule of Civil Procedure 42(b) controls bifurcation, permitting 

separate trials of one or more separate issues for convenience, to avoid 

prejudice or to expedite and economize. The decision whether to try issues 

separately is within the sound discretion of the trial court. In re Bendectin 

Litigation, 857 F.2d 290, 307 (6th Cir. 1988). 

 Plaintiff argues that the fact and expert witnesses on both sides will 

testify as to (1) the issue of liability, (2) the issues relating to the 

defendants’ failure to investigate and timely pay reasonable maintenance, 

and (3) whether defendants’ conduct rose to the level of culpability 

warranting an award of punitive damages. Therefore, bifurcating the trial 

would cause these witnesses to testify twice as to the same facts and 

opinions, something Rule 42 seeks to avoid. Plaintiff is a private party who 
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would be greatly inconvenienced by the extra time and expense required 

for two trials. In addition, as a seaman, plaintiff is considered a ward of the 

court in admiralty, and his interests should be zealously protected by the 

court. Skowronek v. Am. Steamship Co., 505 F.3d 482, 491 (6th Cir. 2007). 

 Bifurcation would extend the length of the combined trials and cause 

evidence and testimony to be repeated because the same facts and 

opinions would be presented on the issue of whether defendants breached 

their duties and on the issue of whether those breaches were egregious so 

as to impose liability for punitive damages. 

 Defendants argue that if the jury hears evidence regarding punitive 

damages during the liability phase of trial, it may become emotionally 

inflamed and place either undue sympathy upon plaintiff or undue prejudice 

against defendants. In addition, evidence of defendants’ financial 

conditions or ability to pay will improperly shift the focus from the 

evidentiary burden for each cause of action. 

 The court is not convinced that defendants’ concerns about inflaming 

the jury is valid. On the other hand, the court does find that bifurcating the 

issues for trial will lead to inconvenience and added expense for both the 

parties and the court. For these reasons, defendants’ motion to bifurcate is 

denied. 
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IV. Defendants’ Objections to Order Granting Motion to Compel 

On January 4, 2017, plaintiff filed a motion to compel answers to 

discovery. Plaintiff sought production of (1) tax returns and other financial 

information from American and Liberty, (2) age composition and retirement 

information of all American and Liberty crew, both licensed officers and 

unlicensed seamen, and (3) training modules and videos showing the use 

of a fall protection device implemented as a subsequent remedial measure 

after the incident that is the subject of this litigation. Defendants opposed 

the motion. Judge Whalen held a hearing on January 26, 2017 and made 

the following rulings: 

(1) Tax Returns and Financial Information. The Magistrate Judge 

ordered production of all tax returns and financial information of 

both American and Liberty Steamship Companies from 2011 to 

the present. 

(2) Age Composition. The Magistrate Judge ordered production of 

age composition and retirement ages for all American and Liberty 

Steamship Company personnel, both licensed officers and 

unlicensed seamen, with the exception of any personnel serving 

as a captain. 
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(3) Training Modules and Videos. The Magistrate Judge, while 

recognizing that the information likely will be inadmissible at trial, 

nevertheless ordered the production of this information. 

Defendants object to the decision of the Magistrate Judge and request that 

this court refuse to adopt the order and enter an order denying plaintiff’s 

motion to compel. 

 With respect to nondispositive matters, this court reviews the 

Magistrate Judge’s decisions for abuse of discretion. Fed. R. Civ. P. 72(a). 

A. Tax Returns and Financial Records 

 Defendants argue that plaintiff seeks tax returns and financial records 

for its punitive damages claim, but defendants do not believe plaintiff has a 

viable punitive damages claim. The court rules today that plaintiff can seek 

punitive damages for its maintenance claim. The court overrules 

defendants’ objections to the order granting the motion to compel as to tax 

returns and financial records. 

B. Age Composition of Defendants’ Personnel 

 Plaintiff sought to compel information relating to the age composition 

of all of American and Liberty personnel, including all licensed officers and 

unlicensed crew members. Both defendants object to providing such 

information because the request is overly broad and seeks information that 
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is neither relevant nor likely to lead to the discovery of admissible evidence. 

The Magistrate Judge acknowledged that the request was overly broad as 

phrased, and wondered “what could reasonably be deemed relevant in 

terms of showing positions or classifications that Mr. Knudson, without 

resort to speculation, could have obtained.” (Hearing Transcript, p. 37). 

Nevertheless, the Magistrate Judge ordered the production of such 

information for all employees of both American and Liberty. 

 As plaintiff was not an American employee, the portion of the order 

requiring production of this information relating to American is erroneous as 

such information is immaterial to plaintiff’s case. There is no suggestion 

that plaintiff was free to move between companies or had taken steps to 

secure a position with American. The production of information relating to 

American personnel is not relevant to the economic analysis of plaintiff’s 

claimed wage loss. 

 Plaintiff’s credentials allowed him to sail aboard a Liberty vessel in an 

entry-level position. He had no licensure allowing him to sail as an officer, 

union or non-union, on any vessel. Plaintiff has not provided any evidence 

that he was certified to serve as an able-bodied seaman. Therefore, any 

claim by plaintiff that he would have attained a higher rank is speculative at 

this point. Plaintiff is required to prove future wage loss with reasonable 
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certainty. Defendants argue that the notion that plaintiff would have 

advanced beyond his entry-level position is wishful thinking and 

speculative, and therefore such a contention is inadmissible. 

 Plaintiff responds that he had a long career in commercial fishing 

before leaving to take care of his mother during a long and final illness. He 

then set out to continue his career as a seaman and found employment 

with Liberty. Plaintiff contends he was advised when he was hired that his 

employment provided opportunities for advancement. Because defendants 

argue that plaintiff would not have advanced beyond an entry level seaman 

for the remainder of his work life, plaintiff wants access to age composition 

information to argue his theory of the case. 

 Defendants have produced some information, which plaintiff admits 

addresses most of his needs in order to present his theory of the case. In 

an effort to compromise, defendants state they are willing to produce the 

age composition of entry-level (the same classification as plaintiff) and 

able-bodied (the next highest classification than plaintiff) seamen for Liberty 

only. 

 Plaintiff’s economist has requested that defendants provide the 

subsequent wages and earnings of the similarly situated, entry level 

employees of Liberty, as relevant to plaintiff’s lost future earnings. The 
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court finds that this is a reasonable compromise for plaintiff to be able to 

present his theory of the case without overburdening Liberty. 

 The court holds as follows: 

1. The discovery at issue is limited to Liberty. 

2. Age composition discovery is limited to entry-level and able-bodied 

Liberty seamen. 

3. Subsequent wage and earnings of similarly situated entry level 

Liberty employees shall be produced. 

C. Training Modules and Videos 

 Plaintiff sought, and the Magistrate Judge ordered, production of 

evidence of subsequent remedial measures adopted by American and 

Liberty following the incident. Rule 407 of the Federal Rules of Evidence 

makes inadmissible any evidence of subsequent remedial measures to 

prove negligence, culpable conduct or a defect in a product or its design. 

Plaintiff acknowledges this, but argues that the videos would be useful in 

helping the jury understand the testimony of plaintiff’s safety expert in 

explaining how a fall protection device could have been incorporated in the 

rigging of the bosun’s chair. Rule 407 allows a court to admit evidence of 

subsequent remedial measures “for another purpose, such as 
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impeachment or – if disputed – proving ownership, control, or the feasibility 

of precautionary measures.” 

 Specifically, plaintiff seeks information generated by defendants in 

their investigation that led to changes to the rigging (this has apparently 

already been provided), and videos depicting the use of a bosun’s chair 

with a fall protection device. Again, plaintiff admits such evidence of 

subsequent remedial measures is not admissible to prove liability or 

culpability, but argues it is admissible to determine the cause of the 

accident and to explain why the wrong type of line was used on the bosun’s 

chair involved in this case. The video will illustrate how easily a fall 

protection device could have been incorporated into the rigging of the 

bosun’s chair without interfering with the essential function or efficiency of 

the procedure. Plaintiff states that the video can be shown to the jury 

without disclosing that the defendants actually made this change after the 

incident. Plaintiff maintains that he should be given the information in 

discovery and the court can ultimately determine whether it is admissible at 

trial. 

 While admissibility for trial and discoverability are not the same thing, 

the object of the discovery request must have some evidentiary value 

before an order to compel disclosure of otherwise inadmissible material will 
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issue. Kemper Ins. Cos. v. J.B. Hunt Logistics, Inc., 2003 WL 25672797 

(N.D. Ga, June 17, 2003). Defendants told Magistrate Judge Whalen that 

they admit incorporating a fall protection device into the rigging of the 

bosun’s chair is feasible. The court agrees with Magistrate Judge Whalen 

that the learning modules and videos would be useful to the plaintiff’s 

expert for purposes of discovery, and overrules defendants’ objection in 

this regard. The court reserves ruling on whether the modules and videos 

are admissible at trial. 

Dated: August 30, 2017 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

August 30, 2017, by electronic and/or ordinary mail. 

s/Marcia Beauchemin 

Deputy Clerk