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Barnes v. Sea Hawaii Rafting, LLC

United States District Court, D. Hawaii

September 6, 2018

CHAD BARRY BARNES, Plaintiff,
v.
SEA HAWAII RAFTING, LLC; KRIS HENRY; ALOHA OCEAN EXCURSIONS, LLC; JOHN DOES 1-20; MARY DOES 1-20; DOE CORPOPRATIONS 1-20; DOE PARTNERSHIPS 1-20; DOE ASSOCIATES 1-20; DOE GOVERNMENTAL AGENCIES 1-20; AND OTHER ENTITES 1-20, in personam; AND M/V TEHANI, HA 1629-CP, AND HER ENGINES, EQUIPMENT, TACKLE, FARES, STORES, PERMITS, FURNISHINGS, CARGO AND FREIGHT; DOE VESSELS 1-20, in rem, Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          ALAN C. KAY SR. UNITED STATES DISTRICT JUDGE

         This matter arises under admiralty law. Plaintiff Chad Barry Barnes was injured on July 3, 2012, by an explosion while working as a seaman aboard in rem defendant M/V Tehani. Exhibits (“Ex.”)[1] 1, 27. The Tehani is a 25-foot rigid-hull inflatable boat powered by twin outboard engines, Ex. 23, which in personam defendant Sea Hawaii Rafting, LLC (“SHR”) owned at the time of the accident, [2] Henry Tsti. Tr. 27:5-9.

         In Barnes v. Sea Hawaii Rafting, LLC, the Ninth Circuit issued a writ of mandamus directing this Court to award Barnes maintenance at the rate of $34 per day, subject to a potential upward increase after trial. 889 F.3d 517, 543 (9th Cir. 2018). Further, the Ninth Circuit encouraged this Court to sever the issue of maintenance and cure and expeditiously set it for trial. Id. at n.21. On May 2, 2018, the Court entered a minute order setting an expedited trial on Plaintiff Barnes's claims for maintenance and cure to commence on June 12, 2018. ECF No. 314. However, the parties requested a continuance of that date, ECF Nos. 317, 319, so the Court entered a minute order rescheduling the non-jury trial to commence on Tuesday, July 31, 2018. ECF No. 322.

         On July 31, 2018, Barnes's claim for maintenance and cure came on for a three-day trial without a jury. The issues for determination were: (1) the daily rate of maintenance-at least $34 per day-to which Barnes is entitled; (2) the amount of cure, if any, to which Barnes is entitled; (3) whether Barnes has reached maximum medical cure; (4) whether SHR's denial of maintenance and cure was willful and wanton, justifying an award of attorneys' fees and punitive damages to Barnes; and (5) the appropriate rate of pre-judgment interest, if any, applicable to any judgment in favor of Barnes.

         The Court, having carefully considered the testimony of the witnesses, the exhibits in the record, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, makes the following Findings of Fact and Conclusions of Law. To the extent that a Finding of Fact constitutes a Conclusion of Law, the Court adopts it as such. And to the extent that a conclusion of Law constitutes a Finding of Fact, the Court also adopts that assumption.

         I. FINDINGS OF FACT

         A. The Parties

         1. At all times material, plaintiff Chad Barry Barnes was a resident of the District of Hawaii. Barnes was a seaman serving on the M/V Tehani on July, 3, 2012. Barnes Tsti. Tr. 24:4-11; Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment as to Unseaworthiness, Negligence Per Se, and Jones Act Negligence, and Dismissing Defendant M/V Tehani for Lack of Jurisdiction at p. 19, ECF No. 197.

         2. At all times material, in personam defendant Sea Hawaii Rafting, LLC (“SHR”) was a Hawaii limited liability corporation with its principle place of business in Hawaii.[3] SHR was Barnes's employer at the time of the July 3, 2012 accident, and Kris Henry was the owner and sole member of SHR. Henry Tsti. Tr. 17:20-21, 27:5-9. On May 21, 2018, the bankruptcy court in In re Sea Hawaii Rafting, LLC, Case No. 14-01520, granted Barnes relief from the automatic bankruptcy stay to proceed on his in personam claims against SHR. Id. Dkt. 300 at pp. 12-13.

         3. At all times material, in rem defendant the M/V Tehani and her appurtenances (together with SHR, “Defendants”), was located in the District of Hawaii. The M/V Tehani was and is a commercial vessel duly registered and/or documented by and with the State of Hawaii, Division of Boating and Ocean Recreation. E.g., Ex. 4 at pp. 3.

         B. The July 3, 2012 Accident

         4. On July 3, 2012, Henry called Barnes into work for SHR because another deck hand was unable to work as scheduled. Barnes Tsti. Tr. 24:4-11.

         5. The two men arrived at the Honokohau Small Boat Harbor in Kailua-Kona, Hawaii, and began to prepare the M/V Tehani for SHR's evening snorkeling trip. Ex. 29; Henry Tsti. Tr. 30:20- 25, 31:1-13.

         6. After the initial preparations were complete, Henry started to trailer the Tehani into the water. Ex. 27 at p. 3; Ex. 29 at p. 1.

         7. As the vessel was being lowered into the water, Barnes began to start its engines. Ex. 27 at p. 3; Ex. 29 at p. 1. When Barnes started the second engine, there was an explosion from under the floorboards which caused parts of the vessel to be thrown into the air, striking Barnes on the back of the head and injuring him. Ex. 27 at p. 3; Ex. 29 at p. 1.

         8. The explosion and fire appear to have been caused by fuel that had leaked out of the fuel tank through a missing bolt in the fuel tank sender gauge; the fuel leaked into the Tehani's bilge and ignited when Barnes started the engine. Ex. 27 at p. 18. A United States Coast Guard investigation concluded that the accident may have been avoided if Henry had installed a required flammable vapor detector and mechanical exhaust system. Id.

         9. Following the explosion, Barnes was transferred by ambulance to Kona Community Hospital. Id. at pp. 3, 13; Ex. 29 at p. 1; Henry Tsti. Tr. 42:9-12.

         10. At Kona Community Hospital, Barnes received numerous staples to reattach parts of his scalp. Ex. 49 at p. 2; Henry Tsti. Tr. 24:6-8; Reumann Trial Tr: 35:9-37-1. Barnes was released from the hospital later that day. Ex. 27 at pp. 3, 13.

         C. Barnes's Post-Accident Medical Treatment

         11. Following the July 3, 2012 accident, Barnes began to receive treatment for his physical and psychological injuries at the West Hawaii Community Health Center (“WHCHC”). E.g., Ex. 50 at pp. 1, 98

         12. From August 2012 through the time of trial, WHCHC psychiatrist Dr. Victoria Hanes, M.D. treated Barnes for various psychological disorders, including: (1) Major Depressive Disorder, Severe; (2) Cognitive Disorder Not Otherwise Specified; and (3) Psychological Factors Affecting Hypothyroidism, Diabetes Mellitus Type II, High Cholesterol, and Tinnitus. Ex. 50 at p. 1, 98; see generally Hanes Tsti. Tr. 47-77.

         13. Dr. Hanes reported that Barnes's primary symptoms are chronic depressed mood, thoughts of self harm, and cognitive disorganization. Ex. 50 at pp. 1, 98; see generally Hanes Tsti. Tr. 47-77.

         14. Barnes continues to schedule appointments with Dr. Hanes to receive treatment for his various psychological disorders and symptoms resulting from the July 3, 2012 accident. Id. at 76:21-77:3.

         15. In addition, after seeing various primary care providers since the July 3, 2012 accident, Ex. 50 at pp. 1, 98, Barnes has received treatment from Dr. Heather Miner, M.D. since September 4, 2013, Ex. 50 at p. 71; Miner Tsti. Tr. 49:6-18.

         16. Dr. Miner observed that Barnes has several chronic issues that are difficult to manage, including diabetes, hypothyroidism, headaches, memory and cognition issues, difficulty sleeping, Tinnitus.[4] Miner Tsti. Tr. 51:23-25, 52:2- 5, 55:10-12, 57:5-19, 59:1-3.

         17. Dr. Miner most recently treated Barnes on July 12, 2018, and felt that he was making progress. Id. at 69:7-16. Overall, Dr. Miner has observed that Barnes' condition fluctuates, but that he is in the most stable condition he has been in since she began treating him. Id. at 70:22-25.

         18. Barnes has another appointment scheduled with Dr. Miner on October 17, 2018. Miner Tsti. Tr. 70:15-17.

         19. From August 2012 through around February 2016, Barnes's also received treatment from Dr. Marko Reumann, M.D. E.g., Ex. 49 at p. 39; Reumann Tsti. Tr. 30:16-20, 71:13-16. Dr. Reumann testified as an expert in the field of general neurology at trial, and stated that during the course of his treatment of Barnes, Barnes suffered from severe headaches, neck pain, and Tinnitus. Reumann Tsti. Tr. 31:18-32:7.

         20. Dr. Reumann originally believed that Barnes's symptoms were due to a post-concussive syndrome. Id. at 33:8-25; Ex. 49 at p. 2. When Barnes's symptoms persisted, however, it became clear to Dr. Reumann that Barnes was experiencing chronic post-traumatic headache disorder, sensorineural hearing loss with Tinnitus, and chronic insomnia and mood disorder with mild cognitive impairment. Ex. 49 at p. 2.

         21. Barnes's post-traumatic headaches were found to be medically intractable, and Dr. Reumann performed ten occipital nerve blocks to provide Barnes with temporary pain relief. Reumann Tsti. Tr. 53:2-14; Ex 49 at p. 2. Accordingly, Dr. Reumann now believes it likely that Barnes sustained a microscopic microstructural lesion to several parts of his brain in the July 3, 2012 accident. Reumann Tsti. Tr. 39:9-18; Ex. 49 at p. 2 .

         22. Dr. Reumann further opined that Barnes would benefit from future treatment and would regress if unable to continue his course of treatment. Reumann Tsti. Tr. 74:5-18; Ex. 49 at p.p. 3-4. When asked whether Barnes had reached maximum medical cure, Dr. Reumann stated that Barnes had not. Reumann Tsti. Tr. 75:18-25. Dr. Reumann also stated that Barnes needs continued treatment and could continue to improve. Id.

         23. Beyond the testimony of Henry and Barnes, SHR did not submit any evidence or call any other witnesses at trial, including with regard to Barnes's past or current medical conditions.

         D. Barnes's Post-Accident Living Arrangements

         24. At the time of the July 3, 2012 accident, Barnes was living in a two-bedroom, two-bathroom condominium, which cost him $1, 200.00 per month for rent and approximately $200.00 per month for utilities. Barnes Tsti. Tr. 19:25-21:22. Barnes later lost that condominium unit. Id. at 21:7-16.

         25. Within days of Barnes's discharge from the hospital following the July 3, 2012 accident, he began to stay with a man named David Pane. Barnes Tsti. Tr. 30: 3-12; Henry Tsti. Tr. 20:21-22:5. Henry or SHR provided Pane with one $600.00 check on Barnes's behalf to cover rent. Barnes Tsti. Tr. 30: 3-12; Henry Tsti. Tr. 20:21-22:5.

         26. After leaving Mr. Pane's residence, Barnes relocated between many different rooms, apartments, and other living arrangements. Barnes Tsti. Tr. 35:19-36:10. Barnes's average rent at these various locations was around $500.00-$700.00 per month. Barnes Tsti. Tr. 36:1-10.

         27. Among these various places that Barnes stayed for a period of time was the “ohana” house that Mr. William T. Hughes's daughter owned. Hughes Tsti. Tr. 73:10-14. Mr. Hughes and his family also began to transport Barnes to and from his medical appointments, for meals and groceries, and for prescriptions. E.g., id. at 73:19-76:19, 80:8-82:10.

         28. During this time, Barnes could not pay or reimburse Mr. Hughes or his family, but Barnes promised Hughes that he would do so in the event he ever prevailed in this action or found himself in a better financial situation. E.g., id. at 85:23-86:15; Barnes Tsti. Tr. 29:6-19.

         29. Barnes also spent short periods of time with his mother on the United States mainland. E.g., Barnes Tsti. Tr. 36:14-37:1. Further, Barnes's mother helped to support him while he was financially struggling. Id. at 14:20-15:5.

         30. Barnes currently rents at a location that costs him approximately $700.00 per month-$500.00 per month for rent and around $200.00 per month for utilities. Barnes Tsti. Tr. 17:7-18:7.

         E. Barnes's Post-Accident Food Costs

         31. Barnes submitted evidence that his food costs average up to $45.00 per day. Ex 16 at p. 1. Because the places that he lived post-July 3, 2012 accident often lacked kitchens, he was forced to have most of his meals at restaurants. Id.

         32. Barnes also submitted evidence that, if he were able to buy groceries to prepare every meal in his own kitchen, he would require at least $25.00 per day comprising $5.00 per day for breakfast, $8.00 per ...


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