REVISED SEPTEMBER 29, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31326

MARK BARTO, 

 Plaintiff - Appellee

v.

SHORE CONSTRUCTION, L.L.C.; MCDERMOTT, INC., 

 Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Mark Barto, an employee of Shore Construction, L.L.C., (“Shore”) was 

hurt when he fell while working on a derrick barge operated by McDermott, 

Inc. (“McDermott”). Barto sued McDermott under the Jones Act. He also sued 

Shore for cure under maritime law. After a bench trial, the district court 

entered a judgment against McDermott and Shore. McDermott appeals the 

district court’s finding that it was completely at fault for the accident, as well 

as several components of the Jones Act damages award. Shore appeals a 

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2015

Lyle W. Cayce

Clerk

 Case: 14-31326 Document: 00513211143 Page: 1 Date Filed: 09/29/2015
No. 14-31326

2

portion of the cure award. We AFFIRM as to most issues but REVERSE and 

RENDER as to the award of future lost wages against McDermott.

FACTS AND PROCEEDINGS

Plaintiff-appellee Mark Barto was a Jones Act seaman employed by 

Shore. Shore assigned him to work as a rigger aboard Derrick Barge 50 (“DB 

50”), a derrick barge operated by McDermott.

Barto had an accident while he was working on DB 50. Barto and several 

other crew members were performing an operation in which a cable was taken 

from a crane, inspected and subjected to maintenance, and spooled onto a large 

spooling machine. As the spooling machine slowly turned to reel in the cable, 

Barto was responsible for guiding the cable by tapping it to ensure that the 

cable lines did not overlap. He was offered no guidance on how to perform this 

task, which is not routine but instead is done approximately once every two 

years. Barto had been working on DB 50 for about 5 months and had never 

performed this task before. He was also “one of the lowest ranking riggers on 

the barge,” as well as “the least experienced.” The barge’s crew included a 

superintendent, a foreman, several leadermen, and a number of more 

experienced riggers.

The spooling drum was elevated about eight to ten feet above the deck. 

To perform his task, Barto first tried to use a two-by-four wooden plank to tap 

the cable lines into place, which was the method used by the person he had 

seen performing the task previously. But Barto testified that he began having 

trouble reaching the spooling drum from the deck. So he decided to get a fir 

board and lay it across part of the spooling machine’s frame so that he could 

stand on the board. He picked a board that “looked sturdy,” although it already 

had a notch cut out of one end. The notch removed a little over half of the 

board’s width from approximately the last foot of the board’s length. After 

placing the board on the spooling frame, Barto stood on top of the board and 

 Case: 14-31326 Document: 00513211143 Page: 2 Date Filed: 09/29/2015
No. 14-31326

3

used a brass hammer to guide the cables. The district court credited Barto’s 

testimony that he was standing approximately four feet from the deck and that 

the board’s notched end extended over the frame so that it did not bear any 

weight.

The district court concluded that Barto’s supervisors could easily see him 

on the board, and that they did not tell him to get down because they did not 

think it was unsafe. Barto also testified that a leaderman, Rene Vallecillo, 

came over and talked to Barto while he was standing on the board. Vallecillo 

told Barto to tap the cable lines if they overlapped on the spool, but he did not 

tell Barto to get off the board.

In the past, other McDermott employees, including leaderman Vallecillo, 

had used fir boards as makeshift scaffolding inside the spooling machine’s 

frame. Some McDermott employees had instead performed the task by 

standing on the frame itself. Other McDermott employees, however, were able 

to perform the task by standing on the deck and tapping the cable using a twoby-four or even a four-by-four board. 

The board on which Barto was standing ultimately broke at the notched 

end, and Barto fell. The district court found that, given that Barto had placed 

the board so that the notch overhung the frame, “somehow [the board] 

apparently moved on him as he was working and broke where the pictures 

depict that it broke, which is on the end where it was notched out.”

After the accident, Barto began having pain in his left leg, lower back, 

and neck, and he could no longer work. Although Shore paid for most of the 

maintenance and cure requested by Barto, Shore refused to pay for the lumbar 

surgery recommended by Barto’s neurosurgeon, Dr. Ilyas Munshi. Dr. Munshi 

recommended the surgery to reduce pain by removing pressure from the nerve 

sac. About one month before trial, Dr. Munshi performed a three-level 

laminectomy to remove bone at L2 to L5, which removed the pressure on the 

 Case: 14-31326 Document: 00513211143 Page: 3 Date Filed: 09/29/2015
No. 14-31326

4

nerve sac. He then performed a three-level fusion to strengthen the spine.

Shore’s expert witness, another neurosurgeon, admitted that Barto’s nerve sac 

was compressed before the surgery but vigorously contested the surgery’s 

necessity, maintaining that Barto’s pain was on the wrong side to be caused by 

the nerve sac compression.

Dr. Munshi testified by deposition about two weeks after performing the 

surgery. He testified that it was too early to tell whether the surgery was 

successful, although Barto had reported improvement in his leg pain. Dr. 

Munshi testified that, even if the surgery was successful, “[t]here’s a good 

chance, the most he may do is light duty work.” Dr. Munshi also testified that, 

given his experience with other patients who had made a good recovery from 

the surgery he had performed, he “reasonably anticipate[s]” the following 

restrictions: “no frequent bending [or] stooping,” weight lifting restrictions, and 

restrictions on “[a]nything that puts a lot of stress on his back.” These 

restrictions would relate not only to work but also to recreational activities, 

and they would be “long-lasting.” At trial about one month later, Barto 

testified that he was not feeling any pain other than some neck pain “[o]ff and 

on” and some pain from the surgical incision. He testified that, because of the 

back and neck injuries, he could not do several things he enjoyed, such as 

“jogging, lifting weights, baseball, basketball, a lot of sports,” “yard work,” 

“fix[ing] on my car,” and “[p]lay[ing] with my kids.”

Barto sued McDermott for Jones Act negligence. He requested damages 

for, among other things, future lost wages and future “physical and mental 

pain and suffering and loss of enjoyment of lifestyle.” He also sued Shore for 

cure, requesting that it pay for the surgery performed by Dr. Munshi.

The district court held a bench trial and then ruled from the bench. It 

held that McDermott was liable under the Jones Act, reasoning that 

McDermott failed to provide Barto with a safe place to work. The court also 

 Case: 14-31326 Document: 00513211143 Page: 4 Date Filed: 09/29/2015
No. 14-31326

5

held that Barto was not comparatively negligent. As to damages, the court 

held that McDermott owed Barto $400,000 in future general damages and 

$300,000 in future lost wages. Finally, the court held that Shore was liable for 

the surgery costs as cure.

STANDARD OF REVIEW

“The standard of review for a bench trial is well established: findings of 

fact are reviewed for clear error and legal issues are reviewed de novo.” Becker 

v. Tidewater, Inc., 586 F.3d 358, 365 (5th Cir. 2009) (quoting In re Mid–South 

Towing Co., 418 F.3d 526, 531 (5th Cir. 2005)) (internal quotation marks 

omitted). Reversal is warranted under clear error review only if the court is 

“left with the definite and firm conviction that a mistake has been committed.” 

Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006) (per curiam) 

(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)) (internal 

quotation marks omitted).

Despite this court’s typical deference to a district court’s factual findings, 

“a judgment based on a factual finding derived from an incorrect 

understanding of substantive law must be reversed.” Mobil Exploration & 

Producing U.S., Inc. v. Cajun Const. Servs., Inc., 45 F.3d 96, 99 (5th Cir. 1995). 

DISCUSSION

A. McDermott’s Jones Act Liability

McDermott first argues that it is not liable under the Jones Act. We

generally “review a district court’s finding of negligence and apportionment of 

fault for clear error.” Jauch, 470 F.3d at 213. But McDermott argues that we 

should automatically reverse here because the district court misunderstood the 

law. See Mobil Exploration, 45 F.3d at 99. Specifically, McDermott argues 

that the district court erroneously believed that a Jones Act employer has a

duty to provide an absolutely safe place to work (rather than a reasonably safe 

 Case: 14-31326 Document: 00513211143 Page: 5 Date Filed: 09/29/2015
No. 14-31326

6

place to work, which is all that is required under Gautreaux v. Scurlock 

Marine, Inc., 107 F.3d 331, 339 (5th Cir. 1997) (en banc)). 

To demonstrate that the district court misunderstood the law, 

McDermott relies upon the district court’s statement that “[u]nder the Jones 

Act, of course, the Jones Act employer has a duty, a nondelegable duty to 

provide a safe place to work.” The court also found that “the safe method would 

have required—should have required proper scaffolding to be erected before 

employees were required to climb into or onto this spooling machine.”

Upon a review of the entire record, we reject McDermott’s contention 

that the experienced district judge misunderstood elementary principles of 

Jones Act liability. The district court never stated that a Jones Act employer 

has an absolute duty to provide a safe place to work. Further, the district court 

stated that “this is more of a negligence case to me than an unseaworthiness 

case,” suggesting that the court recognized that a normal negligence standard 

of care applies under the Jones Act. Moreover, in their proposed findings of 

fact and conclusions of law, both parties provided the correct legal standard 

(ordinary negligence). It seems unlikely that the district court somehow sua 

sponte settled upon an incorrect legal standard. Also, some of the reasoning in 

the district court’s ruling would made little sense if it thought that McDermott 

had an absolute duty to provide a safe place to work. For example, the court 

pointed out that “[t]here was scaffolding available on the DB 50. There was 

even an experienced scaffolding crew . . . .” If McDermott had an absolute duty 

to provide a safe place to work, it would not matter whether scaffolding was 

available. Instead, the district court seemed to weigh this fact as evidence that 

McDermott’s failure to erect scaffolding was unreasonable. The court also held 

that Barto’s supervisors “failed to properly supervise Mr. Barto . . . , 

particularly since this was not a routine job and something he had never done 

 Case: 14-31326 Document: 00513211143 Page: 6 Date Filed: 09/29/2015
No. 14-31326

7

before.” This reasoning again suggests that the district court was trying to 

discern whether McDermott had exercised a reasonable amount of care.

Because we find that the district court did not misunderstand the law, 

we will reverse the negligence finding only if it was clearly erroneous. Jauch, 

470 F.3d at 213. We hold that it was not. The record reveals ample evidence 

that the standard practice for performing Barto’s assigned task on DB 50 

involved seamen figuring out their own makeshift methods of reaching the 

spooling drum.1 The district court did not clearly err in finding that 

McDermott failed to provide Barto with a reasonably safe place to work by 

failing to provide him with an appropriate way to reach the spooling drum.

B. Barto’s Comparative Negligence

McDermott next challenges the district court’s conclusion that Barto was 

not comparatively negligent for the accident. Again, this court “review[s] a 

district court’s finding of negligence and apportionment of fault for clear error.” 

Jauch, 470 F.3d at 213. We affirm based on this deferential standard of review. 

We have held that:

A seaman . . . is obligated under the Jones Act to act with ordinary 

prudence under the circumstances. The circumstances of a 

seaman’s employment include not only his reliance on his 

employer to provide a safe work environment but also his own 

experience, training, or education.

Gautreaux, 107 F.3d at 339. Comparative negligence “may reduce the amount 

of damages owed [to a seaman] proportionate to his share of fault.” Jauch, 470 

 

1 In particular, the DB 50 superintendent testified that using fir boards as scaffolding 

was acceptable and had been done in the past; a DB 50 leaderman testified that using a fir 

board was safe and that he had done so himself; and a more experienced DB 50 rigger testified 

that he had stood on top of the frame and used a brass hammer to perform Barto’s task. Two 

of Barto’s supervisors also testified that they saw him standing on either a board or the frame, 

and they apparently thought nothing of it. Admittedly, these supervisors testified that Barto 

was standing only two feet from the deck. But the district court found Barto’s recollection 

that he was about four feet from the deck to be more credible.

 Case: 14-31326 Document: 00513211143 Page: 7 Date Filed: 09/29/2015
No. 14-31326

8

F.3d at 213. The burden of proving comparative negligence is on the Jones Act 

employer. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008)

(“[C]ontributory negligence is an affirmative defense [in a Jones Act case.]”).

McDermott argues that Barto was comparatively negligent because he 

selected an improper board (i.e., a fir board with a notch in it) and failed to 

secure the board to the spooling machine’s frame. The district court did not 

specifically explain why Barto was not negligent, even though he selected a

notched board and failed to secure it. But the court generally explained its 

decision not to “impose any comparative fault,” noting that Barto “was the low 

man on the totem pole. He was the least experienced. He had never performed 

this work before.”

Moreover, the district court credited Barto’s testimony that he had 

placed the notched end of the board over the frame such that the notched end 

was not supporting any part of his weight. The DB 50 superintendent testified 

that, if the notched portion had overhung the frame, “I think the board would 

have held [Barto’s] weight.” Also, the board apparently did hold Barto’s weight 

for 25 to 30 minutes, further supporting an inference that Barto’s selection of 

the board was not negligent. The district court therefore did not clearly err by 

finding that McDermott failed to prove that Barto was negligent in his 

selection of the board, given how he placed it on the frame.

McDermott also did not demonstrate that a reasonable seaman with 

Barto’s “own experience, training, or education” would have realized that he 

had to secure the board. See Gautreaux, 107 F.3d at 339 (“The circumstances 

of a seaman’s employment include . . . his own experience, training, or 

education.”). Indeed, a DB 50 leaderman, Vallecillo, testified that, “[i]f I would 

have seen that the board wasn’t banded [(i.e., wasn’t secured to the frame)], I 

probably would have tell him something, but I didn’t see that” (emphasis 

added). This testimony seems to indicate that even a leaderman would not 

 Case: 14-31326 Document: 00513211143 Page: 8 Date Filed: 09/29/2015
No. 14-31326

9

view the failure to secure the board as particularly unsafe, given that Vallecillo 

was unsure whether he would have told Barto to get off an unsecured board. 

To be sure, McDermott also presented evidence from a barge foreman that the 

board should have been secured to the frame. But again, McDermott bore the 

burden of proving that Barto was negligent, given his relative inexperience. 

Notably, the only other rigger who testified did not opine that the board should 

have been secured. And McDermott adduced no other testimony that a 

relatively inexperienced rigger like Barto should have known to secure the 

board. Further, there was no testimony that the people who had previously

used fir boards to perform Barto’s task had secured the boards. The district 

court therefore did not clearly err in finding that McDermott did not prove

Barto’s comparative negligence, given his relative inexperience.

C. Future General Damages

McDermott also challenges the district court’s award of future general 

damages in the amount of $400,000. “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). “Put 

otherwise, ‘[w]e do not reverse a verdict for excessiveness except on the 

strongest of showings.’” Id. (quoting Dixon v. Int’l Harvester Co., 754 F.2d 573, 

590 (5th Cir. 1985)) (alteration in original).

Future general damages are available “for pain and suffering and impact 

on one’s normal life routines.” Crador v. La. Dep’t of Highways, 625 F.2d 1227, 

1230 (5th Cir. 1980). On appeal, McDermott focuses its argument on only pain 

and suffering, arguing that there is no evidence that Barto’s pain will return 

now that he has had surgery. McDermott does not argue that Barto will be 

able to return to his normal life routines. This is particularly important 

because the district court noted that “[t]here is no question he’s going to 

continue to need to be followed and will have some rather significant 

 Case: 14-31326 Document: 00513211143 Page: 9 Date Filed: 09/29/2015
No. 14-31326

10

permanent restrictions, as has been testified to by Dr. Munshi, with residual 

pain.” Further, the district court’s future general damages award specifically 

contemplated, in part, Barto’s “permanent restriction of normal living—

normal life activities and so forth.” And Barto presented evidence that his life 

activities would be limited. He testified that he could no longer do things he 

enjoyed, such as “jogging, lifting weights, baseball, basketball, a lot of sports,” 

“yard work,” “fix[ing] on my car,” and “[p]lay[ing] with my kids.” And Dr. 

Munshi testified that, even if the surgery was completely successful, he 

expected that Barto would indefinitely need to avoid “[a]nything that puts a lot 

of stress on his back.” 

At oral argument, McDermott maintained that Barto produced 

insufficient evidence of the impact on his normal life routines. Specifically, 

McDermott argued that a seaman’s own uncorroborated, self-serving 

testimony is not enough to prove this impact. This argument fails for three

reasons. First, McDermott did not raise this argument in its appellate brief, 

so it is waived. E.g., Am. Nat. Gen. Ins. Co. v. Ryan, 274 F.3d 319, 325 n.3 (5th 

Cir. 2001). Second, Barto’s testimony was corroborated: Dr. Munshi testified

that, even after the surgery, Barto’s recreational activities would likely be 

restricted. Third, even if Barto’s testimony were uncorroborated, the mere fact 

that testimony is uncorroborated and self-serving does not automatically mean 

that a factfinder is prohibited from crediting it. See, e.g., Curry v. Fluor 

Drilling Servs., Inc., 715 F.2d 893, 895 (5th Cir. 1983) (rejecting defendant’s 

complaint that district court credited plaintiff’s self-serving and 

uncorroborated testimony).2

 

2 We note that McDermott has not raised an excessiveness challenge to the component 

of future general damages that compensates Barto for the impact on his normal life routines. 

We therefore express no opinion on whether the award was excessive.

 Case: 14-31326 Document: 00513211143 Page: 10 Date Filed: 09/29/2015
No. 14-31326

11

McDermott next argues that the future general damages award violates 

our maximum recovery rule. “This judge-made rule essentially provides that 

we will decline to reduce damages where the amount awarded is not 

disproportionate to at least one factually similar case from the relevant 

jurisdiction.” Lebron, 279 F.3d at 326 (quoting Douglass v. Delta Air Lines, 

Inc., 897 F.2d 1336, 1344 (5th Cir. 1990)) (internal quotation mark omitted).

McDermott has not demonstrated that the rule is applicable here 

because it has not pointed to a damages award in a “factually similar case from 

the relevant jurisdiction.” Id. In particular, in the case that McDermott offers 

as a comparator, the court awarded “$50,000 for future physical and mental 

pain and suffering.” Aycock v. Ensco Offshore Co., 833 So.2d 1246, 1248 (La. 

Ct. App. 2002). Nothing indicates that this award accounted for the “impact 

on [the plaintiff’s] normal life routines.” Crador, 625 F.2d at 1230. In contrast, 

the $400,000 award here explicitly accounted for the impact on Barto’s 

everyday life. Thus, McDermott has failed to advance a suitable comparator 

for Barto’s future general damages award, so the maximum recovery rule does 

not even come into play. See Lebron, 279 F.3d at 326 (noting that the 

maximum recovery rule “‘does not become operative unless the award exceeds 

133% of the highest previous recovery in the [relevant jurisdiction]’ for a 

factually similar case” (quoting Douglass, 897 F.2d at 1344 n.14) (alteration in 

original)).

D. Future Lost Wages

McDermott’s final argument is that the district court erred by 

calculating Barto’s lost wages according to an above-average work-life 

expectancy. A damages award for future lost wages should generally be based 

upon a seaman’s work-life expectancy, meaning “the average number of years 

that a person of a certain age will both live and work.” Madore v. Ingram Tank 

Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). “Such an average is not 

 Case: 14-31326 Document: 00513211143 Page: 11 Date Filed: 09/29/2015
No. 14-31326

12

conclusive. It may be shown by evidence that a particular person, by virtue of 

his health or occupation or other factors, is likely to live and work a longer, or 

shorter, period than the average.” Id. “Absent such evidence, however, 

computations should be based on the statistical average.” Id.

Here, the district court noted that expert economists provided wage loss 

estimates for work-life expectancies of age 55 to “age 67, which is the Social 

Security requirement age for Mr. Barto.” The district court then said, “What 

I’m going to do is award something in the middle. I think that’s a reasonable 

estimation of his loss of future earning capacity.” Accordingly, the district 

court awarded Barto $300,000 for future lost wages. McDermott argues that 

the district court erred by relying upon an above-average work-life expectancy.

Barto’s expert economist provided a range of estimates for Barto’s future 

lost wages for two different retirement ages: 55.8 and 67. The age of 55.8 was 

selected based on a table of statistical work-life expectancies that had been 

prepared by other economists. In contrast, the age of 67 was selected because 

it is Barto’s “full retirement age, as determined by the Social Security 

Administration.” McDermott’s expert economist provided a different range of 

estimates based on a retirement age of 58.2, which its expert selected based on 

a work-life expectancy table from the U.S. Department of Labor’s Bureau of 

Labor Statistics.

Barto’s economist did not provide any reason to believe that Barto would 

continue to work past his statistical work-life expectancy. The only relevant 

evidence Barto presented at trial was his testimony that he plans to work “[a]s 

long as I can retire. Whatever the retirement age is.” This scant evidence was

not enough to show that Barto “by virtue of his health or occupation or other 

factors, is likely to live and work a longer, or shorter, period than the average.” 

Madore, 732 F.2d at 478. For one thing, Barto did not specifically testify that 

he planned to work until age 67. And nothing indicates that Barto knew that 

 Case: 14-31326 Document: 00513211143 Page: 12 Date Filed: 09/29/2015
No. 14-31326

13

this was the Social Security retirement age. Moreover, even if the district court 

believed that Barto wanted to work until age 67, wanting to work until age 67 

is not the only or even the most significant factor in determining whether 

someone actually will work until age 67. As we have previously pointed out, 

an employee “might have become disabled before [the Social Security 

retirement age] as a result of illness or some other misadventure.” Id. Or the 

employee “might have died before then.” Id. Certainly Barto presented no 

evidence that such events were particularly unlikely given his health or other

factors. Barto therefore did not successfully rebut the presumption that the 

average work-life expectancy should apply.

McDermott asks us to render judgment, reducing the future lost wages 

award from $300,000 to $209,533. The district court explicitly credited the 

vocational expert’s opinion that Barto could still work as an unarmed security 

guard. Barto’s own expert economist determined that his net future lost wages

would be $209,533 if he worked as an unarmed security guard and retired at 

age 55.8. We therefore find it appropriate to render judgment in the amount 

of $209,533 for future lost wages.

Barto contended at oral argument that we should instead remand for the 

district court to determine future lost wages based on a retirement age of 58.2, 

the age selected by McDermott’s expert economist. This age is about 2.5 years 

longer than the statistical work-life expectancy selected by Barto’s expert 

economist. But at trial, Barto failed to provide an expert opinion on future lost 

wages assuming a retirement age of 58.2. “It is a basic concept of damages 

that they must be proved by the party seeking them.” Servicios-Expoarma, C.A. 

v Indus. Mar. Carriers, Inc., 135 F.3d 984, 995 (5th Cir. 1998). Barto should 

have presented a revised expert opinion at trial if he intended to argue that 

McDermott’s slightly higher work-life expectancy should apply. We decline to 

remand to give Barto a second chance to prove future lost wages.

 Case: 14-31326 Document: 00513211143 Page: 13 Date Filed: 09/29/2015
E. Cure

Shore’s sole argument on appeal is that Barto did not prove that the 

lumbar surgery was intended to improve his physical condition, so the 

surgery’s cost was not available as cure. This question of fact is reviewed for 

clear error. Becker, 586 F.3d at 365. Moreover, “when there are ambiguities 

or doubts [as to a seaman’s right to receive maintenance and cure], they are to 

be resolved in favor of the seaman.” Johnson v. Marlin Drilling Co., 893 F.2d 

77, 79 (5th Cir. 1990) (quoting Vaughan v. Atkinson, 369 U.S. 527, 532 (1962)) 

(internal quotation marks omitted) (alteration in original).

“Cure involves the payment of therapeutic, medical, and hospital 

expenses not otherwise furnished to the seaman . . . until the point of 

‘maximum cure.’” Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 

1979). Maximum cure occurs “when it appears probable that further treatment 

will result in no betterment of the seaman’s condition.” Id. “Thus, where it 

appears that the seaman’s condition is incurable, or that future treatment will 

merely relieve pain and suffering but not otherwise improve the seaman’s 

physical condition, it is proper to declare that the point of maximum cure has 

been achieved.” Id. It logically follows that, “when a particular medical 

procedure is merely palliative in nature or serves only to relieve pain and 

suffering, no duty to provide payments for cure exists.” Johnston v. Tidewater 

Marine Serv., No. 96-30595, 116 F.3d 478, 1997 WL 256881, at *2 (5th Cir. 

Apr. 23, 1997) (per curiam) (unpublished table opinion). For example, if a 

seaman’s epilepsy is caused by scarring in his brain, medicine for “[c]ontrol of 

seizures is not a cure, for the precipitative factor, the scarring, remains.” 

Stewart v. Waterman S.S. Corp., 288 F. Supp. 629, 633–35 (E.D. La. 1968), 

aff’d, 409 F.2d 1045 (5th Cir. 1969) (per curiam), cited with approval in Pelotto, 

604 F.2d at 400.

 Case: 14-31326 Document: 00513211143 Page: 14 Date Filed: 09/29/2015
No. 14-31326

15

Here, Dr. Munshi testified that the purpose of the surgery was to remove 

pressure from the nerve sac, which caused at least some of Barto’s pain. The 

removal of pressure from the nerve sac would thereby better Barto’s physical 

condition by curing the root cause of his pain rather than merely correcting the 

symptom (pain). The surgery was therefore curative rather than merely 

palliative in nature. The surgery also corrected a physical abnormality that 

existed in Barto’s body (pressure on the nerve sac) and thereby bettered his 

physical condition by restoring it to a normal, healthy condition. The district 

court therefore did not clearly err by requiring Shore to pay for the surgery as 

cure, particularly given that any doubts about cure “are to be resolved in favor 

of the seaman,” Johnson, 893 F.2d at 79.

CONCLUSION

As to the award of future lost wages, we REVERSE and RENDER 

judgment that Barto is entitled to $209,533.00 for future lost wages against 

McDermott. In all other respects, we AFFIRM the district court’s judgment.

 Case: 14-31326 Document: 00513211143 Page: 15 Date Filed: 09/29/2015