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Marine & Energy Alert: Over 20 Years Later, U.S. Fifth Circuit's Evaluation of Pre-Death Pain and Suffering Damages Remains Constant

June 02, 2017

On April 10, 2017, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s $400,000 award for pre-death conscious pain and suffering in McBride v. Estis Well Service, L.L.C.

The case came to the Fifth Circuit on appeal following a bench trial before Magistrate Judge Patrick Hanna of the United States District Court for the Western District of Louisiana. Plaintiff, Haleigh McBride, individually and on behalf of deceased crewmember Skye Sonnier’s minor child, filed suit against of Estis Well Service, L.L.C. following an accident aboard Estis’s drilling barge in Bayou Sorrell, Louisiana. Estis’s drilling rig toppled over and fatally pinned Sonnier between the derrick and mud tank.

Estis challenged the district court’s $400,000 award of damages for pre-death conscious pain and suffering because it contended that Sonnier was not conscious after impact and therefore did not suffer. The Fifth Circuit disagreed and found sufficient evidence to support the district court’s finding.

Eyewitness testimony showed Sonnier was aware of the danger immediately prior to impact and photographs showed that he attempted to protect himself. The pathologist who performed the autopsy testified that Sonnier could have been conscious and aware for up to five minutes following the impact, but was more than likely only conscious for one to two minutes after impact. Moreover, witness testimony confirmed Sonnier was alive after impact. Given the evidence, the Fifth Circuit affirmed the district court’s award.

Over 20 years earlier, in 1994, the Fifth Circuit reduced a $1,000,000 award for pre-death pain and suffering to $500,000 in Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994). Randall perished in a swing rope transfer from a fixed platform to an offshore crewboat when he lost his grip and fell into the rough seas. Randall clung to the platform’s legs for approximately 25 minutes during unsuccessful rescue efforts before drowning.

The Randall Court recognized that assessment of pain and suffering damages “cannot be supported entirely by rational analysis, but is inherently subjective, involving experience and emotions as well as calculation” and concluded that Randall’s suffering, although extreme, was “mercifully brief.” In determining that the lower court’s $1,000,000 award was not reasonable, the Randall Court compared the award, which translated to $40,000 per minute or almost $60,000,000 per day, to other pain and suffering awards and reduced the award accordingly.

McBride is significant because it evidences that the quantum for conscious pre-death pain and suffering, although heavily fact dependent, has remained constant in the $500,000 range.

The case is McBride v. Estis Well Serv., L.L.C., 853 F.3d 777 (5th Cir. 2017). A copy of the Court's decision is available here.

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