U.S. District Court for the Middle District of Louisiana
The plaintiffs alleged that James T. McAllister (the decedent) was exposed to asbestos while working as a machinist mate aboard various vessels while serving in the United States Navy. The plaintiffs claim the decedent was exposed to asbestos from a variety of products including pumps manufactured by Nash while working in engine rooms on submarines. The decedent passed away from mesothelioma and his surviving spouse and sons seek damages for the decedent’s pre-death pain and suffering, mental anguish, loss of enjoyment of life and seek damages for loss of income and loss of household services.
Nash moves for partial summary judgment on the plaintiffs’ claims for non-pecuniary damages claiming it to be unavailable under maritime law and damages for loss of income. The plaintiffs do not dispute that general maritime law applies in this matter and concede that non-pecuniary damages are unavailable in a wrongful death claim under general maritime law. However, they argue that damages for the claimed losses are available.
The court noted that summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines there is no genuine dispute of material fact. The party seeking summary judgment need not produce evidence negating the existence of material fact, but need only point out the absence of evidence supporting the other party’s case. The party responding to the motion for summary judgment may not rest upon the pleadings but must identify specific facts that establish a genuine dispute.
Moreover, under the Jones Act, an injured seamen can seek recovery for their own pain and suffering and a decedent’s estate can bring a survival action to recover all losses suffered during the decedent’s lifetime. Pecuniary losses under the Jones Act extends beyond its original meaning to encompass a decedent’s pain and suffering. In Bell v. Foster Wheeler Energy Corp., the court ruled that damages for a decedent’s pre-death pain and suffering are pecuniary under the Jones Act.
Turning to Nash’s argument that the plaintiffs cannot recover for loss of income because the decedent’s answers to interrogatories indicated that no one was dependent on him, the court noted that plaintiffs’ first amended complaint noted that decedent’s spouse resided in Louisiana where decedent resided with her until his death. Under In re Fleet, survivors are entitled to recover pecuniary damages for loss for support and for loss of household services. Therefore, damages for loss of income may only be covered by the decedent’s surviving spouse as executrix for his estate as his surviving son did not reside with him prior to his death.
Consequently, the court denied Nash’s motion for partial summary judgment regarding pre-death pain and suffering type claims.