Fifth Circuit Revisits McBride Maritime Decision: Pre-Death Pain and Suffering, and Lost Support
The United States Court of Appeals for the Fifth Circuit previously held in McBride v. Estis Well Service, L.L.C., 768 F.3d 382 (5th Cir. 2014) ("McBride I") that punitive damages are not available to seamen for claims of unseaworthiness. As a refresher, McBride arose from the death of one Jones Act seaman and injuries to three others caused by an accident on a drilling rig in Bayou Sorrell.
The Fifth Circuit recently revisited McBride and was faced with the questions of whether in a Jones Act wrongful death claim, the surviving beneficiaries of a deceased Jones Act seaman may recover damages for pre-death fear and conscious pain and suffering, and for loss of past and future support, which had been awarded by the district court. The court also was faced with the question of whether an injured seaman is entitled to future medical expenses past the date he reached maximum medical improvement (MMI).1
On April 10, 2017, in McBride v. Estis Well Service, L.L.C., No. 16-30481,--F.3d 382-- (5th Cir. 2017) ("McBride II"), the Fifth Circuit affirmed all damage awards. The Fifth Circuit held that to recover damages for pre-death fear and conscious pain and suffering, the plaintiff must prove by a preponderance of the evidence that the decedent was conscious after realizing his or her danger. The court held that there was sufficient evidence that the decedent in McBride was conscious after impact based on eyewitness and expert testimony in this case. The Fifth Circuit's holding affirms prior case law and again settles the question of the availability of damages for pre-death pain and suffering in wrongful death cases, which had been questioned by the holding in Lewis v. Noble Drilling Services, Inc., No. 15-1018, 2016 WL 3902597 (E.D. La. 7/19/16), that pre-death pain and suffering were non-pecuniary damages that were not recoverable. In Lewis, the plaintiffs were subsequently granted reconsideration of this holding, and it was reversed.
With respect to the damages for loss of past and future support in McBride, the Fifth Circuit rejected the defendant's claim that lost support for the decedent's minor child must be limited to the amount of his child support obligation. The court relied on the totality of the evidence of care and support given by the decedent to his child in affirming the district court's award.
The Fifth Circuit also affirmed the district court's award of damages for future medical expenses past the date of MMI for one of the injured seamen. In so holding, the Fifth Circuit relied on Boudreaux v. United States, 280 F.3d 461 (5th Cir. 2002) and reasoned that the award of future medical expenses was based in tort and was recoverable in addition to the cure award, which terminated once the seaman reached MMI. The Fifth Circuit confirmed, however, that the cure award and the award for future medical expenses were not duplicative, which would be prohibited.
In McBride II, the Fifth Circuit clarified both the availability of certain damages to deceased and injured Jones Act seamen and the requirements that must be proven in order to recover those damages. While the decision may not represent a sea change in the law, it gives clarity to the principle elements that may arise in similar claims.
 The defendant also appealed the decision that the injured seaman was permanently disabled, which the court held was a factual finding by the district court that was not clearly erroneous.