* Judge Stewart concurs in the judgment only.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 17, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30725

TERRY LEJEUNE

Plaintiff-Appellee

v.

TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 6:03-CV-89

Before JOLLY, STEWART*, and CLEMENT, Circuit Judges.

PER CURIAM:**

Transocean Offshore Deepwater Drilling, Inc. (“TODDI”) timely appealed

a judgment for damages and maintenance and cure. We order a remittitur in

part, reverse in part, and affirm in part.

I. FACTS AND PROCEDURAL HISTORY

While Terry Lejeune was working as a crew member on a drilling vessel

owned by TODDI on January 16, 2002, a valve weighing between 80 and 100
No. 06-30725

2

pounds fell from a height of four feet onto the top portion of Terry Lejeune’s left

foot. The valve crushed his first metatarsal bone and peroneal nerve. Lejeune

received treatment and, while his fracture was healing well after three weeks,

he reported excessive pain and was diagnosed with a soft-tissue injury. After

continuing to experience excruciating pain, Lejeune sought treatment from a

neurologist who believed Lejeune was suffering from Reflex Sympathetic

Dystrophy (“RSD”), also called Complex Regional Pain Syndrome (“CRPS”). This

condition causes a patient to experience pain disproportionate to the

precipitating injury. Lejeune was treated with a series of nerve blocks but his

pain continued.

In February 2003, Lejeune’s neurologist concluded that he had reached

maximum medical improvement (“MMI”) and notified TODDI. Lejeune’s

physical therapy was terminated and he was instructed to exercise at home.

During the next three months, Lejeune’s condition deteriorated, and the

neurologist conceded that he had prematurely discharged Lejeune. He

prescribed Neurontin, a nerve pain medication, which Lejeune took in such high

doses that he was unable to function.

In May 2004, Lejeune sought treatment from an anesthesiologistinterventional pain physician who ordered the installation of a sciatic nerve

catheter for pain relief. After the installation in February 2005 was determined

to be successful, the anesthesiologist recommended Lejeune get a peripheral

nerve stimulator which is a device that electrically confuses a nerve in order to

suppress pain impulses. After that procedure in May 2005, Lejeune experienced

a significant decrease in pain. The anesthesiologist testified that he was sure

Lejeune would not need crutches for long, and that many patients improve so

much that the stimulator can be removed in a few years. 

Lejeune sued TODDI under the Jones Act and general maritime law.

TODDI’s liability was stipulated, and the case was tried on the issue of damages.
No. 06-30725

3

The district court awarded damages of approximately $1,800,000.00, consisting

of $750,000.00 in general damages for pain and suffering, $899,894.00 in lost

wages, fringe benefits and meals, $190,012.31 in medical costs, and $6600.00 in

retraining costs. The district court further awarded maintenance and cure for

all “physical and psychological conditions” caused by the accident. 

The district court found that Lejeune had not reached maximum medical

cure and listed its reasons for that finding. After making that finding, the

district court commented:

The Court has been watching Mr. Lejeune very closely during the

course of this trial, and even when I think he was not aware that I

was paying attention to him when he was standing out on the front

steps because my office overlooks that area, this Court has seen Mr.

Lejeune to be in obvious distress and pain.

TODDI timely appealed. 

II. DISCUSSION

A. Extrajudicial observations

TODDI argues that the district court’s extrajudicial observations

prejudiced it because it had no opportunity to test the validity and reliability of

the observations. While this issue has not been decided in this circuit before, the

Tenth Circuit reviewed extrajudicial observations by a judge “by the general

standard regarding the erroneous admission of evidence.” Lillie v. UnitedStates,

953 F.2d 1188, 1192 (10th Cir. 1992). We take the same approach to this

question as the Tenth Circuit. This court reviews evidentiary rulings for abuse

of discretion. Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1329 (5th Cir. 1996).

If evidence was admitted in error, “[w]e must address whether the error was

harmless.” Polythane Sys., Inc. v. Marina Ventures Int’l., Ltd., 993 F.2d 1201,

1208 (5th Cir. 1993). “We will not disturb an evidentiary ruling, albeit an

erroneous one, unless it affects a substantial right of the complaining party.” Id.
No. 06-30725

4

The district court’s extrajudicial observations were in error. It was

improper for the court to make observations, essentially admitting evidence,

without giving the parties the opportunity to challenge that evidence. The issue

to be decided is whether that error was harmless. 

The extrajudicial observation thatthe court made went solely to Lejeune’s

credibility about whether he continued to suffer from the injury. Before

commenting on its observation, however, the court had already determined that

the only witness to question Lejeune’s credibility on that issue was

unpersuasive. The court found that the lone doctor’s opinion that Lejeune could

“return to offshore work today [was] beyond the pale.” This finding was based

on the court’s analysis of the testimony of other witnesses and the voluminous

record of Lejeune’s treatments. It is uncertain whether the court relied on its

observation of Lejeune at all or whether it simply made the remark as an aside

to further justify what it had already determined from its analysis of the

witnesses. Even if the court had relied on its observations of Lejeune out of

court, in light of the record and the analysis conducted by the court, its error in

making the extrajudicial observation did not affect a substantial right of

TODDI’s and was harmless.

B. General damages

TODDI argues that the $750,000.00 in general damages awarded is

excessive and should be limited to $332,500.00. “A district court’s damages

award is a finding of fact, which this court reviews for excessiveness using the

clear error standard.” Lebron v. United States, 279 F.3d 321, 325 (5th Cir. 2002).

“[W]hen this courtis left with the perception thatthe verdictis clearly excessive,

deference must be abandoned.” Eiland v. Westinghouse Elec. Corp., 58 F.3d 176,

183 (5th Cir. 1995). “[W]e apply the loosely defined ‘maximum recovery rule’

when deciding whether a remittitur is in order. This judge-made rule essentially

provides that we will decline to reduce damages where the amount awarded is
No. 06-30725

5

not disproportionate to at least one factually similar case from the relevant

jurisdiction.” Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1344 (5th Cir.

1990) (emphasis in original). “[T]he maximum recovery rule does not become

operative unless the award exceeds 133% of the highest previous recovery in the

state.” Id. at 1344 n.14. “Because the facts of each case are different, prior

damages awards are not always controlling; a departure from prior awards is

merited if unique facts are present that are not reflected within the controlling

caselaw.” Lebron, 279 F.3d at 326 (internal quotation omitted). 

The district court’s award of $750,000.00 in general damages ($400,000.00

for past damages, $350,000.00 in future damages) is higher than other similar

cases in Louisiana. The driver of a car hit by a cement truck who suffered, as a

result of the accident, from RSD, thoracic outlet syndrome, thrombosis,

depression and post-traumatic stress disorder was awarded $300,000.00 in past

and future general damages. Roig v. Travelers Ins. Co., 694 So. 2d 362, 364, 381

(La. Ct. App. 1996). A plaintiff whose hip was struck by a slot machine door who

suffered from RSD, underwent a ganglion block two and a half years after the

injury to relieve her pain, and whose pain was expected to return, although she

suffered only slight pain in her hand and wrist at the time of trial, was awarded

$60,000.00. LeMasters v. Boyd Gaming Corp., 898 So. 2d 497, 500, 503–05 (La.

Ct. App. 2005). One plaintiff suffered third degree burns on his feet, hands, back

and abdomen which forced him to undergo numerous surgical procedures for

debridement of the wounds, skin grafts, and the amputation of one big toe.

Casanova v. Ballard, 533 So. 2d 1005, 1008 (La. Ct. App. 1988). He was also

being treated for decubitus ulcers at the time of trial and was awarded

$200,000.00 for general damages. Id. 

In Louisiana, $750,000.00 in general damages have been awarded to

plaintiffs such as one who was:
No. 06-30725

6

severely burned over 25% of his body. Three quarters of the affected

area received third degree burns while the remainder were deep

second degree burns. Plaintiff’s right arm was covered in third

degree burns from his armpit to his wrist. The right arm was

covered with skin grafts harvested from plaintiff’s thighs. The skin

harvesting process itself produced injuries not unlike second degree

burns thereby further intensifying plaintiff’s suffering. Plaintiff

suffered through two agonizing debridementtreatments per day for

two to three weeks . . . . Plaintiff has suffered permanent scarring

. . . . [P]laintiff testified concerning the anguish he felt when

strangers stared at his scars or when children called him a monster.

Plaintiff suffers from recurring flashbacks, nightmares, and an

inability to sleep.

Thomas v. State Dep’t of Trans. and Dev., 662 So. 2d 788, 795–96 (La. Ct. App.

1995). Another plaintiff was awarded $750,000.00 in general damages when he

suffered a back injury after jumping from a grain dryer where he was engulfed

in flames. Castay v. ADM Growmark River Sys., Inc., 785 So. 2d 47, 54–55 (La.

Ct. App. 2001). He was hospitalized for ten days, underwent four debridement

procedures, two back surgeries, deterioration of his psychological state, and

continued to suffer “constant and considerable” pain at the time of trial. Id. 

The most factually similar case to Lejeune’s is LeBleu v. Dynamic

Industrial Constructors, Inc., where a trailer tongue fell onto LeBleu’s leg and

fractured his ankle while he was attempting to hitch a trailer to a truck. 526 So.

2d 1184, 1186 (La. Ct. App. 1988). 

After an operation complications arose and the ankle developed

sympathetic dystrophy resulting in swelling, pain and stiffness. As

the plaintiff could not use the ankle, atrophy resulted and

eventually the plaintiff’s knee developed a painful condition called

chondromalacia. At the time of trial, two years after the accident,

the plaintiff still had pain and stiffness in his ankle and knee, a

condition which was aggravated by the fact that the plaintiff had to

place most of his weight on his only remaining leg. Mr. LeBleu has

become totally disabled and can walk only with extreme effort and

for short periods of time. The pleasures of everyday life such as

gardening, hunting and even driving himself around are no longer

available to the plaintiff.
No. 06-30725

7

. . . [T]he plaintiff was also suffering from traumatic neurosis. Once

an active person with no history of emotional problems,the plaintiff

was now quiet, withdrawn, despondent, and occasionally suicidal.

He has also become greatly frustrated, restless and nervous and was

experiencing great difficulty in adjusting to his lack of mobility.

Id. at 1189. While the court found that LeBleu’s award of $300,000.00 “might

appear to be in the upper permissible range, due to the extenuating

circumstances of the plaintiff’s previously lost leg and the resulting total

disability,” the court affirmed the award. Id.

The general damages awarded to Lejeune are clearly excessive. While

Lejeune suffered greatly, $750,000.00 in general damages is far higher than the

awards in cases in Louisiana where plaintiffs have suffered similar injuries and

similar long-term pain. His injuries do not rise to the level of those suffered in

Thomas and Castay where Louisiana courts have awarded that amount in the

past. Lejeune’s suffering is similar to that in LeBleu. Lejeune distinguishes his

case from LeBleu by pointing outthe substantial differences in medical costs and

that he is thirty years younger than LeBleu. Such differences are not

convincing. The vast majority of medical expenses in Lejeune’s treatment are

for the purpose of providing physical therapy and reducing his pain and

suffering with the installations ofthe sciatic nerve catheter and peripheral nerve

stimulator, and battery change for the stimulator. A much higher general

damages award cannot be justified by pointing to much higher compensatory

damages designed to reduce a plaintiff’s pain and suffering. LeBleu’s and

Lejeune’s cases are comparable in the amount of pain and suffering each

experienced. Both experienced similar injuries and both continued to suffer from

pain through the time of trial. As to the differences in Lejeune’s and LeBleu’s

ages, because of the medical treatment Lejeune has received and will continue

to receive, one witness opined that he may eventually do without crutches or the

nerve stimulator. LeBleu had no such improvement and suffered additionally
No. 06-30725

8

because he was already missing one leg before his injury which caused him to

place his weight on the injured leg. 

Thus, as Lejeune’s award of $750,000.00 is more than 133% of the highest

recovery in a factually similar case in Louisiana, LeBleu,the maximum recovery

rule applies. The district court’s general damages award was clear error and is

reversed. This court orders a remittitur of the general damages award to

$400,000.00 which is 133% of the $300,000.00 award in LeBleu. 

C. Lost future wages

TODDI argues that the district court erred in its award of $744,108.00 for

lost future wages for the foreseeable future because Lejeune would have no

reasonably foreseeable need for medicaltreatment beyond five years. This court

reviews findings of fact, including damage awards, under the clearly erroneous

standard. Nichols v.Petroleum Helicopters, Inc., 17F.3d 119, 121 (5th Cir. 1994).

“Damage awards will not be disturbed unless we are convinced that an error has

been committed.” Id. (internal quotation omitted). 

The district court found that Lejeune was totally and permanently

disabled for the foreseeable future and would, at best, be able to return to

minimum wage employment part-time after five years. TODDI is incorrect to

suggest that the district court’s decision regarding future medical treatment is

at odds with its decision that Lejeune is disabled for the foreseeable future. The

two issues are separate. A patient may cease medical treatment but still have

a permanent disability. There is substantial evidence in the record from a

vocational rehabilitation counselor to support the district court’s finding.

Therefore, this court cannot conclude that the district court’s finding that

Lejeune was disabled for the foreseeable future was clear error.

The district court’s finding that Lejeune would only return to part-time

work is a closer issue. From the trial transcript, the court’s basis for this finding

was “because [Lejeune] has difficulty sitting for long periods of time.” The court
No. 06-30725

9

consequently asked each economic expert to calculate lost wages based on

Lejeune working part-time. It is unclear what basis the court had for its finding

that Lejeune would only work part-time. Neither vocational rehabilitation

expert concluded that Lejeune would only be able to work part-time. In fact,

Lejeune’s own expert testified that Lejeune would only be capable of “sedentary

work where you sit behind a desk and shuffle paperwork or answer the

telephone throughout the day.” The expert only testified to part-time work

when asked on redirect whether someone working part-time received benefits.

The court appears to have determined that Lejeune could not sit for long periods

of time based on Lejeune’s own testimony that “I can’t stand too long, the pain

increases, or I sit too long the pain increases. I just got to keep rotating, sitting,

standing, laying down.” However, no vocational rehabilitation expert testified

as to how this would affect Lejeune’s ability to work full-time or part-time.

Thus, there was insufficient evidence to support the district court’s conclusion

that Lejeune would only return to part-time work. The decision was clearly

erroneous and the award for future lost wages is reversed and remanded for

recalculation based on Lejeune’s return to full-time work. 

D. Future cure obligation

TODDI argues thatthe future cure obligation, exceptfor those items listed

in the damages judgment for the five-year period after the implantation of the

nerve stimulator, is speculative and the court erred in awarding the obligation.

A district court’s findings of fact in a maintenance and cure decision are

reviewed for clear error and its conclusions of law are reviewed de novo. Silmon

v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996). 

The seaman’s recovery must . . . be measured in each case by the

reasonable cost of that maintenance and cure to which he is entitled

at the time of trial, including, in the discretion of the court, such

amounts as may be needful in the immediate future for the

maintenance and cure of a kind and for a period which can be

definitely ascertained. 
No. 06-30725

10

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531–32 (1938). “Since the amount

and extent of maintenance and cure depends upon future developments,

maintenance and cure for the future are ordinarily not awarded in a lump sum.”

Dupre v. Otis Eng’g Corp., 641 F.2d 229, 234 n.6 (5th Cir. 1981) (internal

quotation omitted). A shipowner’s obligation to provide maintenance and cure

to a permanently injured seaman extends until the incapacity is diagnosed as

permanent. Vella v. Ford Motor Co., 421 U.S. 1, 4–5 (1975). 

The district court required the defendantto provide for Lejeune’s physical

therapy and psychological treatment beyond the five years contemplated in the

calculation of medical costs, until Lejeune can make no further improvement or

he no longer requires treatment to prevent his condition from deteriorating.

This court has acknowledged that maintenance and cure amounts may vary

because they depend upon future developments. So, it is not error for the

district court to obligate TODDI to pay an uncertain amount. Nor is it error for

the district court to obligate TODDI for an uncertain period of time, so long as

the end point is ascertainable. 

ThatLejeune had not yet reached maximum medical improvementis wellestablished in the record. His anesthesiologist testified that Lejeune may no

longer need crutches in the future and that some patients cease needing the

stimulator. Since Lejeune’s incapacity was still not diagnosed as permanent at

the time of trial, the court’s award of the continued cure obligation was proper.

While it is not known when Lejeune will reach maximum medical improvement,

it is a point that can be definitely ascertained. This court does not find that the

district court’s decision is clear error. The district court’s judgment regarding

TODDI’s future cure obligation is affirmed. 

Because TODDI challenged the future cure obligation for an indefinite

period beyond May 2010, this court reviewed the district court’s award of

$124,945.00 for future damages for medical costs. A portion of the future
No. 06-30725

11

damages award, $26,466.00, was for doctor visits until May 2010. This amount

was calculated by estimating Lejeune would visit the doctor four times a year at

a cost of $125.00 to $150.00 per visit. At $500.00 to $600.00 in doctor visits per

year, the present value of future doctor visits for four years should be closer to

an amount of $2400.00, not $26,466.00. The portion of the future damages

award for doctor visits is clearly in error and appears to account for doctor visits

for an unknown period long after May 2010. Beyond May 2010, such costs are

provided for in the future cure obligation. The portion of the future damages

award designated for doctor visits is reversed and remanded for recalculation to

account for doctor visits until May 2010. 

III. CONCLUSION

The district court erred in making extrajudicial observations of the

plaintiff, but the error was harmless. This court orders a REMITTITUR of the

general damages award to $400,000.00. The award for future lost wages is

REVERSED and REMANDED for recalculation consistent with this opinion.

The future cure obligation is AFFIRMED. The future damages award for doctor

visits is REVERSED and REMANDED for recalculation ofthe cost of visits until

May 2010.