the journal of thethomas milleramericas’bodily injury team · 2016-04-20 · winter 2014/15 the...

WINTER 2014/15

The journal of theThomas Miller Americas’ bodily injury team

Good investigative practice

Witness preparation andobstruction of justice

Post-accident arbitrationagreements

Removing the wreck of theCosta Concordia

Adverse jury verdicts

‘CONTEMPLATION OF JUSTICE’ AT THE US SUPREME COURT

EDITORIAL

2 Bodily Injury News Winter 2014/15

Full houseThis year’s BI seminar was the 10th annualseminar. What began as a small informal halfday discussion of one or two topics forspecific Members has grown to become acomprehensive full day seminar combininglegal updates by the Club’s service providersand hands on practical problem solving usingspecific cases handled by the Club.

Topics covered by the seminar over the pastten years have included crew medical fraud inPEME exams, US Customs & Immigration’shandling of stowaways and refugees, dealingwith the media; limitation of liability,criminalization of crew members andshipowner, employment law issues in crewclaims and best practices when investing andhandling bodily injury claims.

As ever, this year’s seminar was very well attended by a cross sectionof the Club’s Members.After completing a full agenda, participants,Thomas Miller claims executives, seminar speakers (some of the topmaritime trial lawyers in USA) and local service providers relaxedwith cocktails and dinner in Manhattan.

As you may know, the TMA BI Team meets once a month to discusscases, which meet a variety of criteria.The Team uses its collectivenationwide experience to develop case handling strategies, considerappropriate reserves and review the performance of the key maritimeattorneys who work with us and the Members to mitigate exposure inthis volatile claims area. From theThomas Miller offices in New Jerseyand San Francisco, BI claims executives with full Club authority canattend mediations, arbitrations and trials at short notice and low cost.

In addition to best practices claims handling and estimating, the UKClub’s Risk Assessors have been visiting Member ships.They oftenobserve good practices which may be adopted on other ships.Thosepractices have been collected on the Loss Prevention section of thewebsite www.ukpandi.com/loss-prevention/on-board-practical-advice/. Good practices in preventing bodily injuries include:confined space entry warnings stencilled on cargo hatches; gentlefall arrestor safety harnesses; good mooring line protections; andPPE stations at the entrance to chemical store.

The Team will soon start working on the 2015 Seminar, details ofwhich will be included in the Spring/Summer edition of BI News.If anyone has any suggestions for topics to be included in the 2015Seminar, we look forward to hearing from you. Contact details forour Bodily Injury Team can be found on the back page.

Mike JarrettPresident & CEO,Thomas Miller (Americas) Inc.

CONTENTS

Good investigative practice 3

Witness preparation 4

Post-accident arbitration 6

Removing the Costa Concordia 8

Appealing adverse jury verdicts 10

TMA Bodily Injury Team 12

Bodily Injury News

Bodily Injury News is the bi-annualnewsletter of the Thomas MillerAmericas’ Bodily Injury Team.

The topics it addresses are highlyrelevant to all our Members worldwidegiven more than half of the Club’spersonal injury claims over $100,000are brought in the American courts.

We welcome your feedback on thetopics we cover as well as suggestionson subjects to address in futureissues. Please send your commentsand ideas to Louise Livingston [email protected]

The information in this newsletter is notlegal advice and should not be reliedupon as such.

Winter 2014/15 Bodily Injury News 3

Good practiceLouise Livingston recaps Chris Reilly’s back to basics approach in investigations.

The UK Club consistently stresses thatthe best way to control bodily injuryclaims is early involvement of the Cluband prompt and thorough investigation.Though past BI Seminars have touchedon investigations including the differencebetween investigations of civil andcriminal incidents, this year we wentback to basics.

Chris Reilly of Nicoll,Black & Feig,LLPin Seattle,Washington, has a marineengineering background. He is a retiredJudge Advocate General with theUnited States Coast Guard. Chris spokeat this year’s seminar on investigation.His investigative strategy is to answerthree seemingly basic questions:

1. What happened?

2. Why did it happen? and

3. What can be done to prevent ithappening again?

Devoting the appropriate time andresources to properly answering thesequestions can meet both the regulatoryrequirements under the ISM Code aswell as protecting legal needs in the eventa lawsuit is filed.With investigations,one size clearly does not fit all.

Thorough investigationprevent future accidentsThe key duties of any investigator areto collect and preserve evidence, avoidmaking assumptions about the facts andevidence, avoid jumping to conclusionsabout the incident, and to take thetime necessary to do a thoroughinvestigation. If a shipowner is unableto find out what really happened andwhat caused the accident, it will beimpossible to determine what can bedone to prevent a similar accident inthe future. In addition, an effective legaldefense will be difficult.

A good investigator should be skeptical,curious and loyal only to the truth.

From the Club’s perspective, even if theevidence indicates a clear legal liabilityfor the incident causing the injury, theinformation to evaluate that liability isavailable promptly and should guidethe Member’s and Club’s response tothat particular claim.

Chris noted that the American Bureauof Shipping’s ISM Guidance noteencourages shipowners to seek legalcounsel (see box below). In general,any investigation that is not conductedby or directed by an attorney will likelybe discovered by the plaintiff if alawsuit is filed.

Witness recollectionInterviewing witnesses promptly, faceto face, including the injured party,whenever possible, is essential to a fullunderstanding of what happened. Ifan immediate interview of an injuredparty isn’t possible, one should bedone as soon as medically possible –often ashore.

Determining where the witnesses’attention was at the time of the incident,

seeking perceptions and facts, notopinions is also key to understandingthe incident. Memories fade over timeand people change their minds aboutwhat occurred, particularly afterspeaking with other witnesses. Having arecord of witnesses’ recollections soonafter the incident is critical.

Chris recommended against injuryreport forms presupposing ship’sequipment was at fault and caused anaccident. For example, one accidentreport form contained the question“What item/equipment do you thinkcaused the accident?”

Relying on his experience withinvestigations, Chris touched on themultitude of sources of informationon-board a ship, which should bepreserved including contemporaneoussmart phone photographs by the crew,ships documents and various datarecorders. He also discussed the variousexperts that should be involved to assistthe investigation if warranted.

Any investigation should includeexploring whether or not there couldbe a recovery against a third party. Keyevidence involved in the accidentshould also be preserved such as a blockand tackle or a parted line.

The initial investigative report preparedby the curious and sceptical investigatorshould assemble the evidence,interviews and reports facts. The reportshould identify key disputed issues anddisputes between statements and theevidence. Chris made an importantpoint that sometimes,“I do not know”may be an acceptable answer to “Whydid the incident occur?”!

For more information, please [email protected]

INVESTIGATIONS

DOInvolve the legal departmentor outside counsel if potentialliability for the company

DON’TUse judgmental words like“negligent” “deficient”“intentional”

Assign blame

Make broad conclusionsunsupported by the facts

Offer unsupported opinions,perceptions or speculations

“I do not know” may be anacceptable answer to “Whydid the incident occur?”


WITNESS PREPARATION

a dozen witnesses.Witnesses are notlimited to eye-witnesses to theoccurrence; the definition of witness ismuch broader that that. Regulatoryagencies investigating a bodily injuryand lawyers suing over a bodily injuryare considering many issues beyond theimmediate incident that specificallyresulted in the injury. A witness issomeone who can provide first handinformation regarding the incident orfacts related to the incident.

What entities will beconducting interviews ortaking testimonyIn the aftermath of a marine casualtyor accident, the United States CoastGuard may initiate an investigation forthe purpose of taking appropriatemeasures for promoting safety of lifeand property at sea.When there is ashipboard injury, the Coast Guard caninitiate an investigation if an injuryrequires professional medical treatmentor renders a seaman unfit for duty.The Coast Guard’s geographicaljurisdiction is from the waterfrontseaward and all navigable internal/inland waters. In broad terms, the CoastGuard has authority over all US vesselsregardless of location anywhere in theworld, and over all vessels locatedwithin US waters.

The National Transportation SafetyBoard (“NTSB”) also plays a role ininvestigating major marine accidents onnavigable waters, internal waters, or theterritorial sea of the United States andaccidents involving US flagged vesselsworldwide to determine the probablecause and identify safety recommend-ations which will prevent similar eventsin the future.

Witness preparation andobstruction of justiceAn insider’s view of witness preparation, avoiding charges of obstruction of justiceand employer responsibility. Noreen Arralde recaps the seminar.

Chris Reilly, former staff judgeadvocate for the 17th Coast GuardDistrict in Alaska and current memberof the firm Nicoll Black & Feig,provided an insider’s view of preparingwitnesses with an eye toward avoidingcharges of obstruction of justice, whileFreehill, Hogan & Mahar partners MikeFernandez and Tom Russo shared theirexperiences based on many years ofdefending corporations and individualsin matters involving MARPOLviolations and other criminalenforcement actions.

Mike, a graduate of Kings Point andMaster Mariner, is a frequent lecturerboth here and abroad on topics such aspreparing witnesses to be interviewedby the authorities and the role ofcounsel in investigations, as is Tom, aninternationally known lawyer withexpertise in environmental criminal lawmatters. Delegates to the Bodily InjurySeminar were privileged to hear fromthese three extraordinary lawyers.

The focus of the Witness Preparationand Obstruction of Justice segment was

bodily injury claims, but the speakersmade it clear that the issues applyequally to property damage, pollution,and other claims.

The preliminary issues identified:

• Who are the witnesses needingpreparation for interviews or testimony

• What entities will be conductinginterviews or taking the testimony

• What does the preparation actuallyinvolve

Once preliminary issues were reviewed,explanation of the importance ofinvesting the time and resourcesnecessary to properly prepare witnesseswas discussed. Special emphasis wasplaced on the need to have lawyersconducting witness preparation.

Who are the witnessesneeding preparation forinterviews or testimonyFor every incident involving a seriousbodily injury on a ship, there are at least


Direct and vicarious criminalliability/respondeat superiorA corporation may be held liable forthe criminal acts of its employees, evenif the corporation did not haveknowledge of the act, if:

• The conduct is related to duties theemployee has authority to perform, and

• The conduct benefits, or is intended tobenefit, the company

Note that the above concepts arebroadly interpreted by the authorities.

Attorney-client and workproduct protectionIf witness preparation is conducted bycounsel, conversations with theemployees and crew members areprotected as confidential, as are notes ofthe attorney’s interviews and certaininformation gathered by counsel, butnot records maintained in the regularcourse of business.

If witness preparation is conductedwithout counsel, nothing is protected asconfidential. There is no protectionafforded communications to and fromthe company, the company’sinvestigation, crew interviews andinternal reporting.!

For more information, please [email protected]/[email protected]

The Environmental Protection Agency(“EPA”) or Occupational Safety andHealth Administration (“OSHA”) mayalso get involved in certain circumstancesin maritime casualties.They willtypically do so in coordination withCoast Guard officials.

The United States Coast GuardInvestigative Service (“CGIS”) hasinvestigators authorized to carry firearms,execute and serve warrants, and to makearrests.When CGIS responds to anincident, they are looking for evidenceof a crime.

The Coast Guard investigations of marinecasualties are “not intended to fix civil orcriminal responsibility,” but the CoastGuard investigators often seize evidenceor obtain information from witnesses thathas some bearing on subsequent deter-minations of criminal or civil liability.Therefore, making sure you understandwhat information is being gathered bythese investigators is important.

What does witnesspreparation actually involveIssues which need to be consideredwhen preparing crew witnesses forinterviews by the authorities include:

• Does the crew member require aninterpreter?

• Interviews are protected only ifconducted by counsel

• Is the crew witness a potentialwhistleblower?

• Vessel records maintained by thecrew must be preserved

• Crew member may face individualcriminal exposure

In the context of marine casualtyinvestigations, the authorities haveseveral criminal statutes at their disposalin order to charge companies and/orindividuals with obstruction of justiceand other crimes. False statements orentries in ship’s records, obstruction ofproceedings, tampering with witnesses,and destruction or alteration of recordscan give rise to criminal charges.

Many prosecutions related to so-called

magic pipes used to bypass oily waterseparators and discharge oily waste waterhave been based on false statements givento investigators and/or falsification ofrecord books.The principles ofobstructing an investigation in thecontext of a personal injury investigationare the same.

According to the US Attorney’s manual,a federal prosecutor should initiate orrecommend federal prosecution if theprosecutor believes the person's conductconstitutes a federal offense and theadmissible evidence probably will besufficient to obtain and sustain aconviction. Generally speaking, hidingevidence or instructing a witness to liein the context of a bodily injuryinvestigation could result in anindividual or company indictment.

During the course of the investigationinto a pipeline disaster which killed eightpeople and destroyed 38 homes, thepublic utility provided investigators witha policy document, but later claimed thatdocument was a“draft”policy which wasnot in effect at the time of the incident.Subsequent investigation revealed thepolicy was in effect at the time of theincident and the policy tended toestablish the utility’s culpability for thedisaster.The company has been indictedby a grand jury because of the falsestatement to the investigators.Theemployees who made the false statementmay face jail time.

WITNESS PREPARATION

Pipeline disaster which killed eight people and destroyed 38 homes


ARBITRATION

Post-accident arbitrationagreementsA useful tool to helpemployers manage injurycases. Dee O’Learysummarizes the session.

Tom Canevari of Freehill Hogan &Mahar explained that post-accidentarbitration agreements are differentfrom arbitration clauses in a seafarer’scontract. Post-accident arbitrationagreements are entered into followingan incident and are not part of theemployment agreement.

The post-accident arbitration agreementwas designed so that the shipownercould pay settlement advances in thehope of avoiding litigation. However,some seaman took the advances butthen sued anyway. Shipowners thenconditioned the agreement to arbitrateupon the seaman agreeing to arbitrate inexchange for the settlement advances.

Arbitration clauses are not typicallyseen in US seaman contracts orcollective bargaining agreements,because US seaman employmentcontracts are not subject to the FederalArbitration Act (“FAA”). Employmentcontracts of foreign seaman are subjectto the Federal Arbitration Act.

The NY Court of Appeals, in “Schreiberv. K-SeaTransportation”, held that post-accident arbitration agreements are not“contracts of employment” and areenforceable under the FAA.

Several plaintiffs have challenged thevalidity of the post-accident arbitrationagreements, but have not been successful.In “Schreiber”, the Court put theburden on the plaintiff to show whythe agreement should be held invalid,holding: the arbitration agreement wasnot a release and the “ward of theadmiralty” doctrine did not outweighthe policy favoring arbitration.

Early on, the agreements were short,one-page documents using simplelanguage to avoid claims that theseaman “didn’t know what he wassigning,”. But that format didn’t stopthe seaman from claiming other reasons– such as “I didn’t know I was waivingmy right to a jury;” “I didn’t knowwhat arbitration was;”“I was onmedication or too drunk to understandwhat I was signing.” Courts thenrequired an evidentiary hearing todetermine whether the agreement wasenforceable. The shipowner, with thehelp of counsel, designed a “RedLetter”Arbitration agreement, muchlike the Seaman’s Red Letter Release.The Red Letter Arbitration Agreementhas a detailed list of statements andquestions dealing with common issues,such as: waiving right to jury;

opportunity to consult with counsel;future employment not dependent onsigning agreement, etc. The seamanmust write in his own handwriting thathe understands what he is signing andthat he is signing the agreementknowingly and willingly. Since the RedLetter Release was developed, noseaman has challenged it.

In appropriate cases, post-accidentarbitration agreements are useful toolsin managing injury cases.Theshipowner avoids the uncertainty andcosts of litigation and the seamanreceives a regular income whilerecovering from his injuries.!

For more information on post-accidentarbitration agreements, please contact TomCanevari at [email protected]


ARBITRATION

Distinctions between arbitration and litigationPresentation by Curtis Mase of Mase Lara, Miami Florida

ARBITRATION

Basics• Private – between parties• No Jury• Arises from a contract• Quicker

Venue• Location of arbitration will be

provided for in contract clause• May be flag state, crewmember’s

country of citizenship or country ofshipowner’s incorporation

Governing Law• Will be provided for in contract• Parties may agree otherwise

Selection of Arbitrator/Judge• Contract clause will provide number

of arbitrators (1or 3)• Parties agree on arbitration• No jury—arbitrator decides all

Discovery Process• Very limited discovery• Controlled by arbitrator• Rules not strictly applied

Proceedings• Informal process• No evidence rules• Submissions with limited hearings• Full hearings are similar to trial

Appealability• No right to appeal• Right to modify or clarify

extremely limited• Binding in most instances

Costs• Theoretically lower costs• Must pay arbitrator – can be expensive• Usually prepay all costs of arbitration• Often shipowner pays all costs of

arbitration

LITIGATION

Basics• Public• Judge or Jury• State or Federal• Longer

Venue• Location of trial will be place where

tort occurred or contract breached• May be a forum selection clause

contained in contract which providesfor specific location

Governing Law• Law of the venue (most often)

Selection of Arbitrator/Judge• Judge select at random• Can be a jury trial or bench trial

Discovery Process• Full discovery• Deadlines set by Court• Rules of evidence apply

Proceedings• Very formal process• Can take many days• Rules of evidence enforced by Judge

Appealability• Right to appeal to higher court

Costs• Theoretically higher costs• Usually prevailing party entitled to

costs and fees from other side

Curtis Mase explains thedifferences between arbitrationeither in an employmentagreement or post-accidentarbitration and litigation, whichare summarized here.Understanding the benefit anddrawbacks of both systems ofdispute resolution is animportant tool for Members inconsidering their response to aninjury or illness claim. For moreinformation, please [email protected]


COSTA CONCORDIA

Wreck removal – InnovativeengineeringLindsay Malen, Director of Business Development at Titan Salvage, gave us a “bird’seye view” of the colossal task of the removal of the COSTA CONCORDIA from thewaters off the Italian island of Giglio. Linda Wright summarizes the presentation.

The ship was carrying over 4,000passengers and crew on January 13,2012, when she struck rocks along theisland coast, killing 32 people. Thevessel came to rest against the steeplyslanted ocean floor, listing 74 degrees tostarboard near a national ecologicallypristine coral reef preserve.

Titan Salvage, a world leader andspecialist in marine salvage and wreckremoval, teamed up with Microperi, anItalian marine contractor, specialists inunderwater construction andengineering. Together their large teamof engineers developed a solution toremove the wreck with the least chanceof environmental damage to the sea andthe tourism of Giglio. The ship wasabout 60,000 tons, and the length ofthree football fields. Titan expected torotate the ship to an upright position,refloat her, and tow her to a shipyardfor dismantling. But how?

Imaginative planningThe plan was imaginative, with littleroom for error.The phases wereoutlined as follows:

• Fuel removal – Done by emergencyresponder

• Holdback system and stabilization

• Underwater support and portsidesponsons

• The Parbuckling – Rotate ship toupright position

• Starboardside sponsons andrefloating all sponsons

• Refloat ship for tow to Genovashipyard

Environmental impact

The number one priority for Titan wasthe environment – protection of thecoral reef, the dolphins, the endangeredpinna nobilis mussels, posidoniameadows, and over hundred species ofexotic fish and botanical life.

The safety of the crews working on thewreck was also of the utmostimportance. Due to the dangerousresting spot of the ship, workers weregiven courses in mountaineering toassist them in working at such a sharpangle.The divers were allowed only 45minutes underwater, and then hastenedto a chamber for safe decompression.Extraordinary efforts were made for thedaunting task to remove the COSTACONCORDIA from the ocean bed.

Titan was awarded the project contractin April 2012, and the removal plan wassubmitted in May. The vessel would beremoved in one piece, refloated andtowed away.

The immediate concern was to stabilizethe wreck, which was in danger ofslipping from its precarious position tothe deeper sea floor. Cables were runfrom the portside of the ship, under thehull and anchored to the starboard sideof the granite seabed. Anchor blockswere fixed to the sea floor between thecenter of the wreck and the coast,holding the ship in a stable position.

The next phase involved constructingunderwater platforms, which were thenfixed in place portside to create ahorizontal plane onto which the wreckcould be rotated maintaining an uprightstance.While still partially submerged,the work of welding 13 water-filledsponsons to the above-sea portsidewould be completed to prepare for therotation – or parbuckling.

Months of off-site construction ofplatforms, sponsons, blister tanks (aknewck brace to support the vessel bow)altogether fabricating over 30,000 tonsof external steel structures.Transport


COSTA CONCORDIA

and installation of same, resulted in theparbuckling stage being performed inSeptember 2013. Several times winterweather conditions caused the wreck tosettle, and there was weakening of theship’s structure, but all systems were“go” for September 16th 2013.Theactual rotation would take about 19hours, as the cables attached to thesponsons would slowly roll the ship up.There was only one chance to rotatesuccessfully, so the delicate movementof the ship had to balance the forcesinvolved without deforming the hull.The parbuckling phase was successfullycompleted, and was a tribute to theexpert engineering team.

Now upright and exposed, the vesselwas ready for the next phase – theattachment of replicating sponsons tothe starboard side to create balance.Once the sponsons were stabilizedagainst the starboard side usingstrandjack towers mounted to thesponsons, the refloating processcommenced July 14th, 2014. Slowly the

water was pneumatically pumped outof all sponsons.The air remaining inthe tanks created a “water wings” effect,resulting in appropriate buoyancy. Nowafloat, COSTA CONCORDIA wasready for the final phase.

On July 23rd, 2014, the massive floatingship, supported by sponsons and steelplates, left the harbor of Giglio, withsurrounding boat horns blasting. Herspeed was 2 knots, and 18 meters ofthe ship were submerged, but onSunday, July 27th, 2014, COSTACONCORDIA arrived in Genova,Italy for dismantling.The largest projectin the history of salvage was almostcompleted.This job included over 520men and women and 24 nationalitieswho worked tirelessly under the MDCapt. Rich Habib and Salvage MasterCapt. Nick Sloane.

But the Titan team was not finished.Their commitment to Giglio and theenvironment meant continued cleaning,restoring and replanting of the sea bed

off the island coast in order to bringGiglio back to its original state. Duringthe two year salvage and removal effort,the Titan environmental team, alongwith the University of Rome, cataloguedand monitored the conditions of all sealife in the area, relocating plants other sealife if they were threatened by the wreck.Even after the project end they kepttheir promise to restore the ecologicalbeauty of this national treasure.

Ms. Malen’s presentation at the BISeminar luncheon was highlighted byher array of photos and graphics of theremoval operation phases, and under-water scenes of environmental custodialcare. She attended the wreck severaltimes, and has been invited to speak atnumerous events across the globe onthe COSTA CONCORDIA removalproject.!

For further details and fascinating photostaken during the two year process, view theTitan Salvage website: titansalvage.com ortheparbucklingproject.com


JURY VERDICTS

Adverse jury verdicts in injurycases: Evaluating optionsMarkus McMillin gives the low-down on the Bodily Injury Seminar’s panel discussionon whether to appeal an adverse jury verdict.

In the afternoon of this year’s RoundTable Seminar, the Club hosted a paneldiscussion regarding evaluating themyriad of issues involved in decidingwhether or not to appeal an adversejury verdict. The panelists were Clubrecommended attorneys from Florida,David McCreadie of Lau, Lane, Pieper,Conley, & McCreadie, P.A. and CurtisMase of Mase Lara, both of whom haveargued appeals before the United StatesSupreme Court.

For those Members less experiencedwith United States legal processes, Mr.McCreadie and Mr. Mase began with anoverview of the State and Federal courtsystems. They explained how appeals

navigate through the two court systemsup to the highest state court or, ifaccepted, to the United States SupremeCourt. Importantly, they noted that outof the ten thousand or so petitions sentto the Supreme Court each year, lessthan 1% are actually heard.

Next, the panelists discussed theimportance of post-trial motions beforethe trial court after an adverse juryverdict has been reached. Both properpost-trial motion work, and the timingof those motions, are critical to ensurethat one has a viable appeal. If not donecorrectly, one could lose on proceduralgrounds alone. A few post-trial motionsare as follows:

1. Motion for Judgment Notwithstandingthe Verdict, where the judge is askedto reverse the jury’s verdict becausethere was no factual basis for theverdict or it was contrary to the law;

2. Motion for New Trial, where a requestis made by the losing party for the caseto be tried again on the basis that therewere significant legal errors in the waythe trial was conducted or the juryobviously came to an incorrect result; and

3. Motion for Remittitur, where thelosing party asks the judge to reducethe jury award because it is grosslyexcessive as a matter of law.


JURY VERDICTS

On the whole, these motions are rarelygranted, but they are important to maketo support the record for appeal.

Mr. Mase and Mr. McCreadie thenreviewed various grounds for filing anappeal including race and genderdiscrimination in jury selection, jurymisconduct (truthful disclosure ofinformation to sit on the jury and alsoimproper conduct during the trial suchas independent internet research onpeople or facts in the trial); and jurytampering (attempts to influence thejury through means other thanrepresenting evidence or argument incourt).They also discussed evidentiaryand legal rulings by the court includingincorrect jury instructions or juryverdict forms as a basis for appealing(these are the most common).

The panelists then discussedprocedures on appeal, including stayingthe judgment and any mandate by anappellate court to enforce thejudgment prior to the appeal beingheard by a higher court. These arecritical tasks to ensure that the

prevailing party does not enforce thejudgment against the losing party.

Next, Mr. McCreadie and Mr. Masediscussed considerations regarding thelength of time for an appeal(approximately one to two years andmore if it is ultimately heard by theUnited States Supreme Court); fees andcosts on appeal; the losing party’sobligation to put up a bond or securitywith the court while the appeal ispending (this can be quite expensive);the interest accruing on the judgmentwhile the appeal is pending (this canalso be quite expensive); use ofspecialized appellate counsel or the trialcounsel to appeal an adverse juryverdict (there are advantages anddisadvantages to both).

Other considerations when decidingwhether or not to appeal are using thethreat of an appeal as leverage tonegotiate a settlement (vs. trulyappealing the judgment); the amountof the judgment vs. the time andmoney involved in appealing the case;setting precedent on a legal issue ofgreat importance, or alternatively, therisk of setting bad precedent becausethe case at hand has particularly weakfacts; if the appeal is won and retried,could the result of the second trialactually be worse than the first trial;and the composition of the appellatecourt – does one know if theappellate court panel leans one way oranother with regard to the issues inyour case.

In summary, there is no flow chart ormatrix to follow in evaluating whetheror not to appeal an adverse jury verdict.There are many varied and complexissues involved and each case rests on itsown facts and legal grounds. But athorough evaluation of the above issuesshould assist in deciding whether or notan appeal should be undertaken.!

…there is no flowchart or matrix tofollow in evaluatingwhether or not toappeal an adversejury verdict.

The Bodily Injury Teamwish all our Members and friends

a Merry Christmas anda Happy and Prosperous 2015

❄As always, our best wishes and thoughts

are with the crews who keep watch on boardships at sea during the festive season

❄We look forward to working with

you all in the New Year

Louise S. LivingstonDirect: +1 415 343 0121

Louise is an attorneyspecializing in bodily injuryclaims. Before joiningThomas Miller (Americas) inMarch 2002, Louise was apartner in a San Franciscomaritime law firm. She leadsTM(A)’s Bodily Injury Team.

Jana ByronDirect: +1 201 557 7433

Jana joined Thomas Miller(Americas) in November2005 after seven years ofpractice as an attorneyspecializing in maritimematters.

Dee O’LearyDirect: +1 201 557 7402

Dee joined Thomas Miller(Americas) in December2007 after 17 yearspracticing law in New YorkCity with a firm specializingin maritime matters.

Linda WrightDirect: +1 415 343 0122

Linda joined Thomas Miller(Americas) in May 2010.Previously, she was a P&IClub correspondent onthe Pacific West Coast for29 years.

Thomas Miller Americas’Bodily Injury Team

This dedicated team supportsMembers based both in the UnitedStates and abroad in dealing with adiverse and complex range of personalinjury and illness cases. The onecommon factor is the influence of USjurisdiction or emergency response.

In the past six months, the team hashandled cases ranging from suspiciousdeath, passenger’s leisure activityinjuries, long-term occupational illness,engine room and cargo handlingfatalities, through to shore-sideaccidents, loss of limbs in mooringactivity and even sexual assault.

As well as supporting Member’s claimsand enquiries directly, the team sharetheir collective experience through thepages of “Bodily Injury News”.

Markus McMillinDirect: +1 415 343 0113

Markus joined ThomasMiller (Americas) in 2006,having worked at twomaritime law firms in SanFrancisco.

Noreen D. ArraldeDirect: +1 201 557 7333

Noreen joined ThomasMiller (Americas) in 2012after 13 years with a USlitigation firm and six yearsas claims manager for aglobal container shippingcompany.

San Francisco

TMA BODILY INJURY TEAM

Expertise and experienceA specialist group from both the New Jersey and San Francisco officesempowered with a significant settlement authority to deal with theparticularly demanding cases of bodily injury in America.

New Jersey

Thomas Miller (Americas) Inc

New JerseyHarborside Financial CenterPlaza Five, Suite 2710Jersey City, N.J. 07311, USAT +1 201 557 7300E [email protected]

San Francisco44 Montgomery StreetSuite 1480San FranciscoCalifornia 94104, USAT +1 415 956 6537E [email protected]

the journal of thethomas milleramericas’bodily injury team · 2016-04-20 · winter 2014/15 the...

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