United States District Court, D. Oregon, Portland Division
For Philip Tucker, Plaintiff: Douglas R. Williams, LEAD ATTORNEY, PRO HAC VICE, David Bowen Anderson, Anderson Carey & Williams, Bellingham, WA; Gordon T. Carey, Jr., LEAD ATTORNEY, Attorney at Law, Portland, OR.
For United States of America, Defendant: R. Michael Underhill, U.S. Department of Justice, San Francisco, CA; Ronald K. Silver, United States Attorneys Office, Portland, OR; Vickey Lee Quinn, U.S. Department of Justice, Torts Branch, Civil Division, San Francisco, CA.
For United States of America, Cross Claimant: R. Michael Underhill, U.S. Department of Justice, San Francisco, CA; Ronald K. Silver, United States Attorneys Office, Portland, OR.
For Cascade General, Inc., an Oregon corporation, Cross Defendant: Daniel F. Knox, LEAD ATTORNEY, Noah Jarrett, Schwabe Williamson & Wyatt, PC, Portland, OR.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
Philip Tucker (" Tucker") brings this negligence action against Cascade General, Inc. (" Cascade") and the United States to recover damages for personal injury to Tucker. Tucker sustained permanent and life-altering injuries aboard the Dredge ESSAYONS, a public vessel owned by the United States, when a hatch cover from the upper pump room fell through the hatch opening and struck him in the head while he was working below in the lower pump room.
The United States and Cascade filed cross-claims against each other. Prior to trial, Tucker settled his claim against Cascade; and Cascade's cross-claims against the United States were dismissed, with prejudice. The court defers ruling on the United States' contractual cross-claims against Cascade.
A nine-day court trial of Tucker's case against the United States commenced on April 28, 2014, and concluded on May 23, 2014. On June 18, 2014, the court heard closing summations, and the parties' final submissions were filed on August 22, 2014, On August 25, 2014, the United States filed an Objection and Motion to Strike References in Plaintiff's Proposed Findings of Fact to Excluded Exhibits. Thereafter, the court took this case under advisement.
After careful consideration of the facts and evidence presented by the parties at trial through live and video witnesses, deposition testimony, and exhibits, and having had the opportunity to assess the demeanor of the witnesses, and review and weigh the evidence, the court makes the following findings of fact, which the court finds and holds were established by a preponderance of the evidence, and conclusions of law, pursuant to Rule 52(a)(1) of the Federal Rules of Civil Procedure. Moreover, to the extent any finding of fact constitutes a conclusion of law, the court adopts it as such and, to the extent any conclusion of law constitutes a finding of fact, the court adopts it as such.
After the parties filed their respective Proposed Findings of Fact and Conclusions of Law, the United States filed an Objection and Motion to Strike References in Plaintiff's Proposed Findings of Fact to Excluded Exhibits (doc. # 351). The United States moves to strike references and related argument in Tucker's proposed post-trial findings concerning photographs excluded prior to trial and not admitted into evidence.
Tucker has voluntarily withdrawn the challenged exhibits and related argument, In addition, the court neither considered, nor relied upon the objected exhibits in reaching its decision below. Accordingly, that portion of the United States' Motion is DENIED, as moot.
Additionally, the United States renews its request to have certain transcribed testimony and videos assigned exhibit numbers and admitted as part of the trial record. Tucker has no objection. The portion of the government's Motion that requests the following evidence be admitted is GRANTED:
Exhibit 603: Stevens Transcript;
Exhibit 604: Dyer Transcript;
Exhibit 605(a): Wolff Transcript;
Exhibit 605(b): Wolff Video;
Exhibit 606(a): Tucker Transcript;
Exhibit. 606(b): Tucker Video;
Exhibit 607: Dr. Hamburg Video.
The Revised Joint Pretrial Order (doc. #235) contains the following joint stipulations:
1. At times material hereto, Tucker has been a resident of Clark County, Washington.
2. At times material hereto, the Department of the Army, Army Corps of Engineers (" Corps"), which is a department of the United States of America, had offices in Portland, Multnomah County, Oregon, and within this District.
3. The Dredge ESSAYONS (" Dredge" or " ESSAYONS") is a public vessel of the United States, which was operated by the Corps and was located in this District when suit was filed.
4. At times material hereto, the United States entered into two contracts with Cascade to perform maintenance and repairs on the Dredge at its Portland, Oregon facility. Under one of those contracts, Cascade was required to clean in the Dredge's lower pump room.
5. Tucker was an employee of West Coast Marine Cleaning (" West Coast"), which, inter alia, cleaned tanks and bilges on vessels such as the Dredge.
6. Cascade hired West Coast to clean areas of the Dredge for the Corps.
7. On September 26, 2008, Tucker and other West Coast workers were onboard the Dredge at Cascade's Portland shipyard to accomplish this work.
8. While Tucker was working in the lower pump room on the Dredge, one of Cascade's employees, Joshua Economides, attempted to lift one end of a hatch cover or deck plate (the parties disagree on the proper terminology for this object) that was located in the upper pump room on the Dredge. Economides was unable to hold the cover, and it dropped to the lower pump room where Tucker was working, injuring him.
9. As a result of his injuries, Tucker incurred medical expenses and lost income. The parties do not agree on the amount, extent, or nature of his damages, but Cascade and the United States have not disputed that Tucker sustained injuries in the accident on the Dredge.
FINDINGS OF FACT
1. Tucker was born on February 15, 1975, and was thirty-three years old on September 26, 2008, the date of the accident. Tucker is married to Toni Hotten, who was previously dismissed from the lawsuit. The couple has a daughter, Chelsea, age 13.
2. In 2008, Cascade owned and operated a shipyard on the Columbia River at Swan Island, Portland, Oregon. Cascade employs eight trades or crafts of shipyard repair workers, and between 200 and 600 Cascade shipyard repair workers work on any given day. (Derek Bristow Trial Tr. 1536:6-15, May 22, 2014; William John Kelley Trial Tr. 534:6-10, April 22, 2014; Def.'s Trial Ex. 546.)
II. The Hatch Cover
3. The Dredge has four primary decks. (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 505 at 3; (Trial Tr. Clement 715: 5-25.) The forward portion of the vessel contains the Dredge's pump room, a three-deck high room connected vertically by a central opening. (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 504.) The lower pump room, situated on the lower deck, houses most all of the dredging pumps, piping, and related equipment, and provides access to the bilge tanks. (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 504; Pl.'s Trial Ex. 317H.) The second level, identified as the main deck on vessel drawings, consists primarily of the large central opening surrounded by a perimeter catwalk. (Pl.'s Trial Ex. 317F; Pl.'s Trail Ex. 317G.) The third level of the pump room, located on the upper deck, was called the upper pump room. (Def.'s Trial Ex. 503 at 1, 3; Def.'s Trial Ex. 504.) The top deck above the pump room was the poop deck or weather deck. People travel from one level to the next using an incline-ladder staircase situated approximately forty feet forward of the pump room, (Def.'s Trial Ex. 503 at 3; Def.'s Trial Ex. 504; Patrick Sloan Trial Tr. 812:15-22, May 1, 2014.)
4. In 1991, the Corps opted to modify the cover for the opening or hatchway in the deck of the ESSAYONS's upper pump room. (Def.'s Trial Ex. 505 at 1, 2.) The opening in the upper pump room deck was large enough to permit dredging equipment to move between the three decks comprising the pump room. Most of the time, the opening was covered with a removable gripstrut grating bolted to the deck with a central walkway. (Stephen R. Cinkosky Trial Tr. 330: 13-15; 337: 13-18, April 29, 2014.) The Corps assigned its mechanical engineer, Stephen R. Cinkosky, the task of designing a stauncher new cover for the opening that was less cumbersome to remove. (Cinkosky Trial Tr. 317:8-10; 335:17-336:6; 337:2-23.)
5. Cinkosky's design was acceptable with respect to American Bureau of Shipping (" ABS") class rules and U.S. Coast Guard regulations. (Christopher Todd Clement Trial Tr. 734:22-735:7, May 1, 2014.)
6. The Corps' personnel looked for guidance on safety issues for activities such as the modification project in the Corps' safety manual titled Safety and Health Requirements Manual (" Safety Manual"), commonly known as EM 385-1-1. (Pl.'s Trial Ex. 414; Jeffery McDonald Trial Tr. 77: 6-16, April 28, 2014.) The Corps' Safety Manual in effect in 1991, was published in October 1987. (Pl.'s Trial Ex. 414 at 1.) The Safety Manual states:
1. Purpose. This manual prescribes the Safety and Health Requirements for all Corps of Engineers activities and operations.
2. Applications. These requirements are applicable to all missions under the command of the Chief of Engineers whether accomplished by military, civilian, or contractor forces.
(Pl.'s Trial Ex. 312 at 1; Pl.'s Trial Ex. 414 at 3.) Section 31 of the Safety Manual is titled " Floor and Wall Holes and Openings." (Pl.'s Trial Ex. 414 at 152; Cinkosky Trial Tr. 366:12-18.) It sets forth the following provisions:
31.A.02 All floor and roof holes, skylights, and openings into which persons can accidentally walk shall be guarded by an inclosure guard or covered with material and bracing of sufficient strength to support any load which may be imposed. Coverings for floor and roof opening shall be secured in place to prevent accidental removal or displacement .
31.A.05 Every hatchway and chute floor opening shall be guarded by a hinged floor-opening cover ....
(Pl.'s Trial Ex. 414 at 152 (emphasis added).) Section 10 of the Safety Manual is titled " Signals, Warning Signs, and Signaling." (Pl.'s Trial Ex. 414 at 51.) It sets forth the following provisions regarding safety warnings:
10.C.01 Warning signs shall be placed and provide adequate warning of hazards to workers and the public. Signs should be removed or covered when the hazards no longer exist.
(Pl.'s Trial Ex. 414 at 34.)
7. If the Corps' personnel sought to deviate from Safety Manual provisions, exemptions required approval by the Offices of the Commanding General. (Pl.'s Trial Ex. 312 at 1; Pl.'s Trial Ex. 414 at 3.) The noncompliant alternative must provide " protection equal to or greater than the intent of the pertinent provisions" of the Safety Manual. (Pl.'s Trial Ex. 312 at 1; Pl.'s Trial Ex. 414 at 3.) All such waivers had to be documented by submitting a waiver for approval from the Offices of the Commanding General. (Pl.'s Trial Ex. 312 at I; Pl.'s Trial Ex. 414 at 33.) The design for the new hatch cover was never submitted to the Offices of the Commanding General. (Cinkosky Trial Tr. 410:8-14.) Although the Corps' usual practice was to submit similar drawings for its dredges to the United States Coast Guard (" USCG") for approval, the design drawings for the hatch cover were not submitted to the USCG. (Cinkosky Trial Tr. 607:21-608:8; 609:1-6; Def.'s Trial Ex. 505 at 1, 2.) Nor did naval architects or other outside consultants review the new design. (Cinkosky Trial Tr. 612:15-17.) As pointed out by Lawson Bronson, the United States' liability expert, one purpose of the design review process is to identify and eliminate potential hazards. (Lawson Bronson Trial Tr. 1648-1649, May 22, 2014.)
8. Cascade fabricated the hatch cover and related equipment, and installed them aboard the Dredge at its Portland shipyard. As a result of its fabrication and installation of the equipment, Cascade was aware of the specifications of the hatch cover and related appurtenances, including the size, dimensions, and depth of the supporting lips upon which the hatch cover rested. (Douglas Wolff Video Dep. Tr. 60:23-61:7, 62:4-65:1, March 12, 2014; Bristow Trial Tr. 1526:16-1527:12.)
9. The new hatch cover arrangement in the upper pump room consisted of five heavy marine grade aluminum panels that were each three feet wide and six feet, four inches long. (Def.'s Trial Ex. 505 at 1, Pl.'s Trial Ex. 317E.) Each of the five panels was capped with diamond plate aluminum. (Pl.'s Trial Ex. 317A; Clement Trial Tr. 4-7.) As a result, the panels appear quite light when they are in fact much heavier. (John Sullivan Trial Tr. 134:6-135:2, April 28, 2014; Bristow Trial Tr. 1537:6-9; Clement Trial Tr. 686:4-6, 722:4-10.) Each panel is approximately three inches thick and weighs over 160 pounds. (Sloan Trial Tr. 801:14-16; Larry Graves Trial Tr. 24:5-13, April 28, 2014; McDonald Trial Tr. 73:3-4.) The panels rest on a two and one-half inch wide lip or flange that lies just below the deck level and forms a frame around the perimeter of the fifteen foot by six foot, four inch opening; when in place in the closed position, the panels are flush with the surrounding deck of upper pump room. (Pl.'s Trial Ex, 317A; Graves Trial Tr. 24:14-19; Clement Trial Tr. 708:17-21.) When the hatch cover is closed, the width of the supporting flange underneath the panels cannot be determined when viewed from above. (Bronson Trial Tr. 1644:6-10; Lindsay Docherty Trial Tr. 221:12-15, 222:1-5, April 28, 2014.) The forward- and aft-most panels are supported on three sides by the flange, while the three middle panels are supported underneath only the two shorter sides. (Trial Tr. Bristow 1533:1-8; Kelley Trial Tr. 503:10-1 i.)
10. In each corner of each rectangular panel there are handholds in the form of round grip bars in recessed holes; the handholds suggest to workers they can move the panels without rigging the panels to a crane or come-along. (Pl.'s Trial Ex. 317C; McDonald Trial Tr. 74:11-19; Sullivan Trial Tr. 124:23-125:13; Michael Medcalf Trial Tr. 1517:23-1518:11, May 22, 2014.)
11. Sliding " keeper plates" slide over the edges of and secure each of the five panels of the hatch cover at the two shorter (three-foot-long) ends that face port and starboard. (Cinkosky Trial Tr. 338:3-7.) At the time of the accident, the keeper plates were painted the same color red as the surrounding deck. (Docherty Trial Tr. 198: 11-15.) The panels of the hatch cover cannot be lifted when the keeper plates are bolted in the closed position. (Edwin Anderson Trial Tr. 53:20-23, April 28, 2014.) Once slid closed, each keeper plate can be locked down with three bolts. (Cinkosky Trial Tr. 338:8-19, 339:2-24.) Similarly, to move a hatch cover, the operator first loosens the three bolts, then slides the keeper plates back a few inches from over the hatch cover. (Cinkosky Trial Tr. 338:8-19, 339:2-24.) The designer intended the keeper plates closed while underway to prevent vessel movement from shock-bouncing them out of position, (Cinkosky Trial Tr. 340:14-17; Anderson Trial Tr. 45:5-9.) The Corps also encouraged the ESSAYONS's crew to lock down the keeper plates at all times when the vessel was in port. (Cinkosky Trial Tr. 340:18-20.) Nevertheless, when Cinkosky visited the vessel in port he observed the keeper plates were more often in the open positions; Cinkosky would close the keeper plates when he saw they were left open. (Cinkosky Trial Tr. 604:2-9, 605:24-25.)
III. Operation of the Hatch Cover
12. The hatch cover arrangement is unusual for the marine industry. (Bronson Trial Tr. 1608:9-1609:6; Kelley Trial Tr. 502:4-8, 517: 3-7.) Normally, a hatch cover cannot fall through the opening on which it rests regardless of the direction the hatch cover is moved. (Kelley Trial Tr. 502:10-19, 510:19-511:9; Clement Trial Tr. 655:12-20, 687:6-8.)
13. Cinkosky was aware that opening the hatch cover improperly could be " disastrous." (Cinkosky Trial Tr. 345:11-12; 593:4-10.) If an individual lifted and pulled one of the narrow ends of the rectangular panels to starboard or port (toward the keeper plates), instead of pulling the wide end forward or aft onto the adjacent panel, the panel would fall through to the below decks. (Cinkosky Trial Tr. 344:20-345:13; Clement Trial Tr. 685:5-9; Kelley Trial Tr. 503:15-17.) Bronson conceded the hatch cover presented a hazard if pulled to the side, instead of forward or aft toward the abutting panel. (Bronson Trial Tr. 1604:5-1605:15.) Because the supporting flanges were underneath, the fall hazard was hidden to anyone unfamiliar with the nonstandard hatch cover arrangement. (Clement Trial Tr. 685:18-21.)
14. The vessel crew treated opening the hatch cover as a two-man job, although one person could do it with a rope in an emergency. (Cinkosky Trial Tr. 342:4-17; Sloan Trial Tr. 798:8-10.) The ESSAYONS's chief mate, Jeffrey McDonald, was in charge of the vessel's deck crew. (McDonald Trial Tr. 68:15-18.) Chief Mate McDonald knew that if one person tried to lift one of the panels of the upper pump room hatch cover improperly - by lifting the panel with a handhold and pulling a short end to port or starboard - the panel would slip off the narrow flange and fall to the below decks. (McDonald Trial Tr. 71:10-20.)
15. Derek Bristow had thirty-five years of experience at Cascade as a rigger and he had been a supervisor in the rigging craft since 1988. (Bristow Trial Tr. 1524:8-12, 1526:16-18, 1536:16-17.) Riggers specialize in moving heavy vessel gear and equipment, such as hatch covers, on and off ships and from one place aboard a ship to another. (Bristow Trial Tr. 1526:11-14, 1535:14-1536:5.) Among the Cascade crafts, riggers were uniquely qualified to remove the upper pump room hatch cover. (Bristow Trial Tr. 1536:21-1537:5.) In fact, the rigging craft assisted with the installation of the upper pump room hatch cover in 1991, so Bristow knew how it was installed. (Bristow Trial Tr. 1526:23-1527: 12, 1532:15-23.)
16. In his thirty-five years of experience as a rigger, the ESSAYONS's upper pump room was the only hatch cover Bristow encountered where the cover itself could fall through the hatchway it was designed to close and protect. (Bristow Trial Tr. 1540:9-1542:1.) Due to the two narrow lips that supported the hatch cover panels, there was very little margin for error to prevent the panels from falling through the opening. (Bristow Trial Tr, 1538:17-25, 1533:1-8.) The hatch cover panels were awkward and heavier than they appeared because the heavier under panels were capped by a diamond plate aluminum. (Bristow Trial Tr. 1532:19-24, 1537:6-9.)
17. John Sullivan, Cascade's carpentry craft head, testified that over his twenty-three year career of working aboard vessels in shipyards he never encountered a hatch cover like the one in the upper pump room of the ESSAYONS. (Sullivan Trial Tr. 101:16-23, 107:2-5.) The hatch cover was unique because the flange that supported the panels was part of the deck frame. (Sullivan Trial Tr. 101:24-105:11.) Normally, the flange is part of the hatch cover itself and it extends over the deck or combing for support. (Sullivan Trial Tr. 101:24-105:11.) With the hatch cover design regularly encountered by shipyard repairmen, as one side is lifted, the flange on the opposite side pivots on top of the deck -- thus, the hatch cover can be raised nearly ninety degrees without risk of the opposite, pivot side falling through the hatchway. (Sullivan Trial Tr. 101:24-105:11.) On the other hand, when one of the panels of the upper pump room hatch cover on the Dredge was lifted from one side, the opposite side of the panel pivoted on the narrow flange. (Sullivan Trial Tr. 101:24-105:11.) If the panel was lifted too high, or lifted to the side, the panel quickly fell off the opposite narrow supporting flange. (Sullivan Trial Tr. 101:24-105:11.) Nor had Sullivan ever encountered a hatch with retractable keeper plates that were not part of the hatch cover. (Sullivan Trial Tr. 136:17-138:2.)
18. Christopher Clement, a naval architect and marine engineer, testified about the ESSAYONS's hatch cover:
A. Yes. That's correct. It's a hazard when they drop. And that hazard -- unfortunately, when the covers are in place, that -- that hazard is -- is invisible. It's not visible to anybody from standing there looking at them. And the other problem with it is, as we know now, these covers are quite heavy, but in -- in the marine business, it -- it would be apparent to anybody that was familiar at all with ships that the top material was aluminum and not steel. And. the reason you would know that is because it was not painted. And, traditionally, aluminum is very difficult to paint and have a cover stay on it because of the oxidation film on it. So from the surface, it looked like a -- it looked like a deck plate made out of aluminum, which was one-third steel and was fairly light.
Q. Okay. How do you design hatch covers so they are safe for those who want to use them -- have to use them?
A. Well, every hatch cover that I have seen or designed in my 40-year career is designed so that it can't fall through the opening that it's protecting.
(Clement Trial Tr. 685:18-686:6, 687:4-8; see also Wolff Video Dep. 14:17-15:5 ('So I think they were very deceptive in terms of their weight and the way they were not fastened down.").) Wolff testified the hatch cover arrangement did not comply with the Corps' Safety Manual standards requiring hinges (Section 31.A.05) and was unsafe to operate. (Wolff Video Tr. 13:15-25, 15:6-16, 96:9-22.) Wolff offered a simple modification that would prevent this type of accident; install vertical pins at the port and starboard end of each panel with corresponding holes in the supporting lips so that the panels could be lifted only by two people holding it, one at each end. (Wolff Video Tr. 17:17-18: 9.)
19. William Kelley, a naval architect and marine engineer, testified:
Q. So can you explain to the Court, given your opinion that their training and supervision was adequate, why this happened?
A. I believe that, as I said in my subsequent report, it happened because of the specific arrangement and detail of the hatch in question. It's off standard, not normal, not designed or constructed or installed in what I would call normal marine practice.
Q. Okay. Can you explain that for the Court?
A. In general, any hatch -- any hatch that I've ever seen or on any vessel that I've ever sailed on or been involved in building or repairing are installed in such a way that the boards or the removal members cannot fall through the opening in which they rest. It's precluded either by dimensions or by a lip or around the outside or by four lips, if there's a removal panel or board or hatch section. It's in such a way that, regardless of the direction you move it, it's going to be supported and not be able to fall below. If that's not the case, then the other alternative is to put a removal stay mid-span so that if it's pulled off one edge it rests on that stay and, again, cannot fall through the opening.
(Kelley Trial Tr. 502:1-23.)
20. Thomas Dyer, a naval architect and marine engineer, testified the upper pump room hatch cover was dangerous and the Corps had an obligation to mitigate the risk of harm. (Thomas Dyer Dep. 59:6-21, April 6, 2012.) Dyer also stated:
Q. And you haven't read the testimony of the person who designed it or of the half dozen other witnesses who talked about the design of it, the Cascade General people who talked about it, Bud Bronson who testified it, have you?
A. The only evidence I have that I can base my opinion on is what happened to Economides when he lifted that comer and the thing fell through ...