United States District Court, D. Hawaii
FINDINGS OF FACT AND CONCLUSIONS OF LAW
C. KAY SR. UNITED STATES DISTRICT JUDGE
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, 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,
Henry Tsti. Tr. 27:5-9.
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.
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.
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.
FINDINGS OF FACT
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.
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. 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.
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.
The July 3, 2012 Accident
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.
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.
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.
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.
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.
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.
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.
Barnes's Post-Accident Medical
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
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.
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.
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.
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.
Miner observed that Barnes has several chronic issues that
are difficult to manage, including diabetes, hypothyroidism,
headaches, memory and cognition issues, difficulty sleeping,
Tinnitus. Miner Tsti. Tr. 51:23-25, 52:2- 5,
55:10-12, 57:5-19, 59:1-3.
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
Barnes has another appointment scheduled with Dr. Miner on
October 17, 2018. Miner Tsti. Tr. 70:15-17.
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.
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.
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 .
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.
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
Barnes's Post-Accident Living
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.
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.
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.
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
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.
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
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.
Barnes's Post-Accident Food Costs
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.
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 ...