Heather Isringhausen Gvillo Oct. 28, 2014, 10:27am

WEST PALM BEACH, Fla. (Legal Newsline) – A Florida federal judge has concluded that because a former sailor in the U.S. Navy was exposed to asbestos while on the high seas and in port, the Death on the High Seas Act only applied in part.

Judge Kenneth A. Marra delivered the Oct. 10 opinion in the United States District Court for the Southern District of Florida granted in part and denied in part defendant John Crane Inc.’’s request to apply the Death on the High Seas Act, or DOHSA.

The court orally addressed John Crane’s motion to apply the DOHSA’s remedial scheme during the jury trial in this case in the event the plaintiff chose to appeal. The jury trial resulted in a verdict in favor of the defendant on Sept. 29 after a two-week trial.

Decedent William Hays was allegedly exposed to asbestos while serving aboard vessels in the U.S. Navy.

After plaintiff Mary Charlene Hays, personal representative of the estate of William Hays, filed the case, it was transferred to the asbestos multidistrict litigation in the U.S. District Court for the Eastern District of Pennsylvania for pretrial proceedings, where Judge Eduardo Robreno ruled that maritime law applied to the case.

John Crane argued that because Hays was also exposed while the Navy vessels were at sea, damages are limited by DOHSA to pecuniary losses.

Additionally, the defendant argued that the plaintiff could not recover for Hays' pain and suffering prior to his death or for his wife’s loss of society or consortium.

Both parties acknowledge the MDL court held that maritime law applied to the case, but the plaintiff disagreed that it was proper and intends on challenging the ruling on appeal if appropriate.

However, the parties do not agree on the issue of what damages are recoverable.

John Crane argued that DOHSA controls recoverable damages for wrongful death of a Navy sailor alleging an injury resulting from asbestos exposure on the high seas.

“John Crane’s position is that since some of the asbestos exposure occurred on the high seas, DOSHA precludes plaintiff, as a beneficiary, from bringing a survival claim for her decedent’s pain and suffering, and precludes an award to her of non-pecuniary damages,” Marra explained.

The plaintiff, on the other hand, argued that the “overwhelming majority” of the decedent’s work with John Crane’s asbestos-containing products occurred in port or on land, rendering DOHSA inapplicable.

“Plaintiff refutes defendant’s argument that any exposure to asbestos on the high seas, no matter how slight in comparison to the lifetime exposure to asbestos off the high seas, would require that DOHSA be applied to the entire claim,” Marra wrote.

Hays also claimed that the defendant “blurs the distinction between Jones Act seamen and Navy sailors” in its analysis of case law.

The court concluded that DOHSA only applies to deaths caused on the high seas, rejecting John Crane’s attempt to apply the Act to this case.

“The court is unaware of any case that has held that DOHSA restricts the recoverable damages for an indivisible injury in a case where some of the exposure to asbestos-containing products occurred on the high seas and some occurred in territorial waters,” Marra wrote.

The court then addressed whether Hays is entitled to recover all damages available or whether the plaintiff’s damages are limited to those recoverable under general maritime law.

John Crane argued that Hays was a seaman, meaning the plaintiff’s recover should be limited.

The court agreed, finding that Hays was a seaman under general maritime law and the Jones Act.

Citing the Supreme Court, Marra explained that for a claimant to be considered a seaman, the claimant must be employed on board a vessel and that all who work or contribute to the purpose of the ship while at sea are seamen.

“Unquestionably, Hays met this definition,” Mara wrote.

“When the decedent is a seaman or person engaged in the maritime trade, as Hays was in this case, federal maritime law and the remedies available under that law control,” he added.

As a result, the court determined that according to general maritime law, damages in survival actions involving the death of a seaman are limited to those suffered during the decedent’s lifetime.

“Based on that holding, the court reasoned that although non-pecuniary damages are not permitted in actions involving the wrongful death of a seaman, such damages may be recovered in a general maritime survival action provided they represent the damages suffered during the decedent seaman’s lifetime,” the court concluded.

In this case, the court determined that Hays cannot recover non-pecuniary damages, but the estate may recover damages for the decedent’s pre-death pain and suffering in the general maritime survival action.

Therefore, the court granted in part and denied in part John Crane’s motion to apply the Death on the High Seas Act’s remedial scheme.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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