Brenden Yarborough, a Jones Act seaman, was working as a crewmember aboard the M/V GERRY BORDELON during Hurricane Ida. He filed a Jones Act personal injury negligence lawsuit against the M/V GERRY BORDELON's owner. The seaman alleged he was injured by three separate events:
During the peak of Hurricane Ida, he says the master instructed him to retrieve multiple oil drums that had broken loose from strong winds. While doing so, he says he was stuck by a drum and pinned against some cargo.
Later in the evening, he says multiple vessels came unmoored and struck the M/V GERRY BORDELON. He says he was “jolted around on the vessel,” causing further injury.
The next day, he says the master instructed him to leave the vessel and tape employees’ car windows in the parking lot. He says he told the captain it was unsafe to do so because of wasps, snakes and “potentially alligators” in the parking lot. Despite voicing this concern, he says he was sent to the parking lot where he was eventually attacked by wasps causing him to fall off a truck and sustain more serious injuries.
The seaman filed a Jones Act negligence lawsuit in New Orleans federal court asking to be compensated for past and future physical and mental pain and suffering, loss of enjoyment of life, past and future disability and other damages. He alleged that the M/V GERRY BORDELON was unseaworthy and her owner was negligent under the Jones Act.
The Seaman’s Deposition
The seaman had to give his deposition on March 1, 2023. The vessel owner’s lawyer cross examined him about the truthfulness of his story. During the deposition, the vessel owner’s lawyer showed screen captures of video footage which was captured from the vessel during the Hurricane. The videos contradict the seaman’s story. The vessel owner’s lawyer did not produce the video before the deposition so referencing using in the deposition caught the plaintiff and his lawyer off guard.
The seaman’s legal team was upset with their opponent’s failure to produce the video before the deposition. To substantiate their frustration, they pointed to their discovery requests where they specifically asked for any video footage. The vessel owner did not disclose it had the video when it answered these requests. Rather, it simply asserted boilerplate objections to the discovery requests.
The seaman’s legal team filed a motion asking the court to sanction the vessel owner for failing to comply with the Federal Rules of Civil Procedure. Specifically, the seaman’s legal team wanted the court to issue an order prohibiting the vessel owner from using the video at trial. The seaman argued that this sanction was needed to punish the vessel owner for its legal team's conduct and to deter others from doing the same in the future.
The vessel owner opposed the motion arguing that the evidence in question falls into the impeachment exception of Federal Rule of Civil Procedure 26(A)(I)(A)(ii), and that under Fifth Circuit precedent it did not need to disclose the evidence prior to the deposition.
The court did not agree with the vessel owner’s legal argument that the impeachment exception allowed the vessel owner's legal team to do what they did. However, the court declined to sanction the vessel owner because the video was produced five months before trial. So the plaintiff was not awarded sanctions and the vessel owner will be allowed to use the video at trial.
Here is a copy of the decision:
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