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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30031

In Re: In the Matter of PARKER DRILLING OFFSHORE USA LLC, as Owner

and Operator of Parker Rig 14-J, Praying for Exoneration From and/or

Limitation of Liability for the incident of September 11, 2003, at Chandeleur

Area Block 27

-------------------------

PARKER DRILLING OFFSHORE USA LLC

Third Party Plaintiff - Appellant-Cross-Appellee

v.

LONNIE CORTNEY CAMPBELL

Claimant - Appellee-Cross-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.

PER CURIAM:*

Claimant Lonnie Cortney Campbell (“Campbell”) worked as a hammer’s

helper on the appellant Parker Drilling (“Parker”)’s rig on September 11, 2003.

On that date, he was transported to the rig and told to take a nap and wait to be

United States Court of Appeals

Fifth Circuit

F I L E D

April 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-30031

2

called to work. Campbell retired to an eight man sleeper on the heliport and

went to bed around noon. At around 3:00 to 3:30 p.m., due to Parker’s improper

maintenance, one of the rig’s legs collapsed causing the rig to suddenly list.

Campbell fell out of the top bunk and landed on top of another employee.

Campbell’s head and upper body hit the floor and his lower body fell into the side

of the bottom bunk. Campbell initially thought that the sleeper had fallen off the

rig entirely. He immediately got up from the floor and went to the locker to

retrieve pictures of his wife and children. Campbell testified that he took his

wallet and put it in his underwear for identification purposes. He then put on a

life jacket and attempted to exit the rig. Upon exiting the sleeper, he saw

nothing but smoke. Clad only in his underwear, Campbell began running until

he found stairs; he helped other workers along the way. Campbell testified that

he had believed that he would lose his life at that time. He feared that the rig

would go completely over, because he observed part of the rig’s deck was already

in the water and that the crane appeared close to falling into the water.

Campbell finally reached the water and swam away; he was able to swim to a

rescue boat and was pulled to safety. 

On September 17, 2003, Parker filed an admiralty suit for exoneration

and/or limitation of liability for the incident as authorized under 46 U.S.C. §

30501, et seq. Campbell filed a suit against Parker, claiming damages to his

neck, lower back, wrist as well as significant post-traumatic stress disorder

(“PTSD”). Parker stipulated to liability. The trial court awarded Campbell the

following: 

1. Past physical pain and suffering for cervical and carpal tunnel

injuries - $300,000.00;

2. Past mental pain and suffering for post traumatic stress disorder

- $150,000.00;

3. Past physical pain and suffering for lumbar injuries - $100,000.00
No. 08-30031

3

Pre-judgment interest on said sums shall accrue at the rate of 6%

per annum, simple interest, from date of loss.

4. Present and future physical pain and suffering for cervical and

carpal tunnel injuries - $100,000.00;

5. Present and future mental pain and suffering for post traumatic

stress disorder - $50,000.00;

6. Present and future pain and suffering for lumbar injuries - 

$100,000.00;

7. Future lost wages - $84,000.00; and

8. Future medical treatment - $68,066.00

Interest on present and future damages as set forth above shall be

calculated pursuant to 28 U.S.C. §1961.

Parker timely appealed the judgment. Campbell cross-appeals. 

STANDARD OF REVIEW

“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). On appeal from a judgment after a

bench trial, we review findings of fact for clear error and conclusions of law de

novo. Houston Exploration Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777,

779 (5th Cir. 2004). “We review the district court's award of prejudgment

interest for an abuse of discretion.” Int’l Turbine Servs., Inc. v. VASP Brazilian

Airlines, 278 F.3d 494, 499 (5th Cir. 2002). 

ANALYSIS

A. Parker’s Contentions 

I. The Maximum Recovery Rule Does Not Apply

Parker contends that the total award of $200,000 for PTSD must be

remitted by operation of the maximum recovery rule. Putting aside the criticisms

that might be levied against an application of the maximum recovery rule, see

Foradori v. Harris, 523 F.3d 477, 505-06 n.21-23 (5th Cir. 2008), Parker’s
No. 08-30031

4

argument is unavailing because it is inconsistent with the very language of the

maximum recovery rule that it relies upon. 

We have held that “[w]e do not reverse a jury verdict for excessiveness

except on the strongest of showings, but when a jury's award exceeds the bounds

of reasonable recovery, we must suggest a remittitur ourselves or direct the

district court to do so.” Dixon v. Int'l Harvester Co., 754 F.2d 573, 590 (5th Cir.

1985). “[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 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). We look at the “rough guidance provided by awards approved for similar

injuries by the Louisiana appellate courts and the decisions of this court

applying Louisiana law.” Moore v. M/V ANGELA, 353 F.3d 376, 385 (5th Cir.

2003) (applying Louisiana law to determine damages in accident involving a

longshoreman on a vessel). 

In this case, Campbell’s injuries and damage award are similar to those

in Nielsen v. Northbank Towing, Inc., 768 So.2d 145, 157-61 (La. App. 1st Cir.

2000), a factually similar case from the relevant jurisdiction. Campbell

presented evidence that he lost interest in previous hobbies, such as raising

animals, working on cars, and playing with his dogs. According to testimony

from his wife and friends, he no longer socializes and pushes his family away.

His personality has also changed from having a positive to a negative outlook on

life. His personality change caused marital difficulties and sexual dysfunction.

Campbell also presented significant medical evidence confirming his PTSD. An

independent medical examiner, Dr. Thompson, and his personal doctor, Dr.

Berard, both diagnosed Campbell with PTSD that is caused by a life-threatening

event that invoked fear and helplessness. Campbell was provided psychological
No. 08-30031

 The parties agreed that the plaintiff “recovered from the physical injuries” he

1

sustained. Nielsen, 768 So.2d at 158. The only basis for the damages award was PTSD. Id. 

5

medication, but his condition still magnified his physical pain and caused

irregular sleeping patterns. His pain caused him severe agitation, anger, and

resentment leading to several major disputes with his wife and friends. He had

distressing dreams and has some fear of enclosed spaces and water. Campbell’s

post-traumatic stress disorder lasted over three years. 

As the trial court noted, the events and injury recounted in this case bear

much factual similarity to those in Nielsen, 768 So.2d at 157-61. Nielsen was a

diver who was “forced to abandon ship [because of a hurricane] and jump into

the thirty to thirty-five foot seas. Although several other individuals and crew

members perished at sea, plaintiff managed to swim to a life raft. After fighting

the seas for hours in the life raft, he was rescued by” another boat. Id. at 151. At

trial, the expert witness “opined that Nielsen was permanently and totally

disabled from working on the open water and that he would continue to need

psychiatric care for approximately two more years to deal with his symptoms.

As of the time of trial, Nielsen stated that while his symptoms are not as severe,

he continues to suffer from flashbacks, nightmares, general paranoia and

anxiety.” Id. at 161. In Nielsen, the Louisiana courts upheld a general damages

award of $350,000 for PTSD. Id. at 157-61. Nielsen and Campbell’s injuries are 1

comparable. Parker presents many damages awards cases from Louisiana

courts, but none of these cases are factually similar or present factually similar

injuries. 

We therefore rely on the most comparable case, Nielsen, which awarded

$350,000 for PTSD. Based on the award in Nielsen, a federal court could award

up to $465,500 (133% of the Nielsen award), which is more than 2.3 times the

award in this case. Douglass, 897 F.2d at 1344 n.14. The award here only

accounts for approximately 43% of the maximum award permitted under
No. 08-30031

 For the first time in its reply brief, Parker requests this court to remand the 2

compensatory damage award so that the trial court may analyze the potential for contributory

fault. We “will not consider a claim raised for the first time in a reply brief.” Haspel & Davis

Milling & Planning Co. v. Bd. of Levee Comm'rs, 493 F.3d 570, 579 n.29 (5th Cir. 2007).

Parker justifies raising this new issue based on a recent decision of this court, Johnson v.

Cenac Towing, Inc., 544 F.3d 296, 303-04 (5th Cir. 2008). Parker’s justification is without

merit because Johnson specifically relied on previous cases to find contributory negligence for

a seamen who concealed material medical information. Id. (quoting Savoie v. Otto Candies,

Inc., 692 F.2d 363, 372 (5th Cir. 1982) and citing Gavagan v. United States, 955 F.2d 1016 (5th

Cir. 1992)). Johnson is not an intervening decision that provides an “important clarification

6

Nielsen. The circumstances and the injury here are not so different from Nielsen

that 43% of the award granted in Nielsen is “clearly excessive” or

“disproportionate” so as to warrant remittur. We decline to apply the maximum

recovery rule in this case.

II. The District Court Did Not Abuse Its Discretion in Awarding Prejudgment Interest By Using An Interest Rate Higher Than the

Federal Rate.

“Setting the rate of interest on a judgment is within the trial court's broad

discretion.” Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1029-30 (5th Cir.

1986) (discussing the setting of the interest rate in an admiralty case). We

review a district court’s decision to award interest based on a state and not

federal rate for an abuse of discretion. Id. at 1029. In Reeled Tubing, we

acknowledged that a district court’s decision to award interest based on a state

rate does not transgress the district court’s discretion. Id. at 1029. For the same

reasons, the use of Louisiana’s rate to determine the interest rate in this case

would not be an abuse of discretion. Id. The burden is on the appellant to show

some “inequity” that compels this court to choose a different rate. Id. at 1029-30;

Gulfgate Marine Transp. Co. v. A/S Dampskibsselskabet Svendborg (In re M/V

Nicole Trahan), 10 F.3d 1190, 1197 (5th Cir. 1994) (affirming the district court’s

choice unless appellant showed “inequity”). Parker presents no evidence of

inequity apart from the fact that Campbell gets a higher return. We affirm the

trial court’s prejudgment interest award.2
No. 08-30031

in the law, and refusal to [apply the case] would have resulted in perpetuating incorrect law.”

Am. Int’l Specialty Lines Ins. Co. v. Res-Care Inc., 529 F.3d 649, 661 n.28 (5th Cir. 2008). We

will not consider this argument.

7

B. Campbell’s Contentions

I. The Damage Awards Are Not “Clearly Erroneous”

On cross-appeal, Campbell contends that the awards for his PTSD and his

back injury should have been higher. This court reviews damages awards for

“clear error.” See Albany Ins. Co. v. Bengal Marine, Inc., 857 F.2d 250, 253 (5th

Cir. 1988) (“Damages need not be proven with an exact degree of specificity, and

we review the award under the clearly erroneous standard.”). “‘[A] factual

finding may be set aside under the clearly erroneous rule only if we are left, on

review of the evidence, with the firm and definite conviction that a mistake had

been committed.’” McDaniel v. Temple Indep. School Dist., 770 F.2d 1340, 1347

(5th Cir. 1985) (quoting Oil, Chem. and Atomic Workers Int'l Union v. Ethyl

Corp., 703 F.2d 933, 935 (5th Cir. 1983)). After reviewing the record and

considering the briefs and oral arguments of the parties, we find no clear error

in these awards. 

Campbell also requests an additional $200,000 for mental anguish;

Campbell, in his original claim, only specifies “post-traumatic stress disorder”

as his psychological injury and not “mental anguish.” Louisiana courts, in many

instances, have treated mental anguish and post-traumatic stress disorder as

describing the same category of injury if the plaintiff is actually diagnosed with

PTSD. See, e.g., Seals v. Shelter Ins. Cos., 894 So.2d 1259, 1262-63 (La. App. 2d

Cir. 2005); Wells v. Morgan Gas Co., 651 So.2d 951, 954-55 (La. App. 2d Cir.

1995). Moreover, in Nielsen, the primary psychological injury was PTSD, and

that served as a basis for a $350,000 general damages award for all the

psychiatric injuries alleged. Nielsen, 768 So.2d at 158. By comparing the award
No. 08-30031

 Unlike Randolph v. Laeisz, 896 F.2d 964, 967-68 (5th Cir. 1990), Campbell does not 3

assert any clear error in Parker’s expert’s method for calculating Campbell’s lost wages.

Campbell only contends that it was an unsuitable method in this case.

8

to Nielsen, the trial court did not clearly err in awarding $200,000 for Campbell’s

psychiatric injury. 

II. The Trial Court Did Not Clearly Err in Relying on an Expert’s

Calculation of Lost Wages.

Campbell contends that the trial court clearly erred in relying on Parker’s

expert’s calculation of lost wages and not on Campbell’s expert’s calculation of

lost wages. In Culver v. Slater Boat Co., we stated that “calculation of the lost

income stream begins with the gross earnings of the injured party at the time of

injury.” 722 F.2d 114, 117 (5th Cir. 1983) (emphasis added). In subsequent cases,

we calculated the “gross earnings” at the time of injury by estimating the

earnings from past data when earnings data was inconsistent. See, e.g., Herbert

v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1050 (5th Cir. 1990); Hernandez v. M/V

Rajaan, 841 F.2d 582, 587-88 (5th Cir. 1988) (relying on part-time earnings of

the past three years to derive future earnings loss); see also Noack v. Am. S.S.

Co., 491 F.2d 937, 942 (6th Cir. 1974) (using a five year period to estimate preinjury earnings because of the fluctuations in earnings). Consistent with these

authorities, Parker’s expert relied on Campbell’s average earnings over the past

five years because of Campbell’s inconsistent work history. Campbell’s expert

acknowledged that Campbell “was not a 40 hour a week worker by any stretch

of the imagination.” The trial court based its opinion on Parker’s expert’s

opinion; its factual finding is not clearly erroneous. See, e.g., Gates v. Shell

Offshore, Inc., 881 F.2d 215, 218 (5th Cir. 1989).3

For the reasons stated above, we AFFIRM the district court’s judgment in

all respects.