JOHNNY MAYS and ALLEN RUSSELL v. Jp & Sons Inc.;

United States Court of Appeals
Fifth Circuit
F I L E D
April 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 05-30287
____________________
JOHNNY MAYS and ALLEN RUSSELL,
Plaintiffs-Appellants
v.
JP & SONS INC.; ET AL,
Defendants
CRESCENT SHIP SERVICE, INC.; BYWATER BOAT WORKS, INC.;
BOSTON OLD COLONY INSURANCE COMPANY,
Defendants-Appellees
_________________________________________________________________
In Re: In the Matter of the Complaint of CRESCENT SHIP
SERVICE, INC., as owner and owner pro-hac-vice, of the M/V
MR FREDDIE, her engines, tackle, appurtenances, etc., in a
cause of Exoneration From or Limitation of Liability
CRESCENT SHIP SERVICE, INC., as owner and owner pro-hac-
vice, of the M/V MR FREDDIE,
Petitioner-Appellee
v.
ISAIAH JOHNSON; ET AL,
Claimants
JAMES YOUNG,
Claimant-Appellant

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* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
2
_________________________________________________________________
ISAIAH JOHNSON; ET AL,
Plaintiffs
JAMES YOUNG,
Plaintiff-Appellant
v.
CRESCENT SHIP SERVICE, INC., Etc.;
BYWATER BOAT WORKS, INC., Etc.,
Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:04-CV-397
_________________________________________________________________
Before KING, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Johnny Mays, Allen Russell, and James Young, the plaintiffs-
appellants in this matter, claimed that they were injured in a
collision between boats owned by defendants-appellees Crescent
Ship Service, Inc., and Bywater Boats, Inc. After a bench trial
on the issue of damages, the plaintiffs-appellants appealed to
this court. All three plaintiffs-appellants now claim that the
district court erred in finding that their testimony was not
credible, and they seek more “adequate” damages. In addition,

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1 Collectively, the defendants-appellees will be referred
to as the “defendants.”
2 Mays claimed that he hit the side rail of the crewboat
with his back during the collision and collapsed to the deck.
The district court found that he suffered “a soft-tissue injury
resulting from the boat collision,” but it found that his
“allegations of more extensive injuries, such as a herniated disc
and nerve damage, [were] not credible in light of . . . [the
medical] reports.” In re Crescent Ship Serv., Inc., No. 03-2107,
at 4, 2005 WL 221562 (E.D. La. Jan. 27, 2005).
Russell claimed that he hit the rail of the crewboat with
his back and leg during the collision. After reviewing the
record, the district court found that Russell did suffer “a soft
tissue injury as a result of the accident,” but it found that his
complaints about continuing and future pain and suffering were
not credible. Id. at 7. Citing Russell’s post-accident
“functional capacity evaluation,” the district court found that
Russell “was a minimal symptom/disability exaggerator” who was
3
plaintiffs-appellants Mays and Russell argue that the district
court erred by failing to include prejudgment interest in their
damages. We AFFIRM.
I. BACKGROUND
Several longshoremen in a crewboat owned by defendant-
appellee, Crescent Ship Service, Inc. (“Crescent Ship”), claimed
that they were injured when their crewboat was struck on February
10, 2003 by a barge pushed by a tugboat owned by defendant-
appellee Bywater Boat Works, Inc. (“Bywater”).1 Among these
passengers were plaintiffs-appellants Johnny Mays (“Mays”), Allen
Russell (“Russell”), and James Young (“Young”) (collectively,
“plaintiffs”). Each of these three plaintiffs allegedly suffered
injuries in the collision, and each claimed that a debilitating
medical condition resulted from his initial injuries.2 Along

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“exaggerating his continued claims of back pain as well as
numbness in his toe.” Id. at 6, 7.
Young claimed that he injured his wrists, arms, neck, and
back while clinging to the rail of the crewboat during the
accident. Based on medical “findings of objective evidence of
injury,” the district court found “that Young injured his wrists
and neck” in the accident; however, the district court was “not
persuaded that the collision was severe enough to have caused a
herniated disc.” Id. at 26.
4
with nineteen of their fellow passengers, these three plaintiffs
filed suit against the defendants for damages related to injuries
and subsequent medical conditions allegedly caused by the
collision. The district court considered this admiralty suit
without a jury on December 6-9, 2004, and filed its opinion on
January 27, 2005. See In re Crescent Ship Serv., Inc., No. 03-
2107, at 1, 2005 WL 221562 (E.D. La. Jan. 27, 2005) [hereinafter
“Crescent Ship I”]. At trial, the defendants stipulated that
they were jointly and severally liable for causing the collision,
and the district court found “that the collision was strong
enough to cause injury to [the] passengers on the crew boat,”
leaving only the issue of damages to be considered for each of
the twenty-two claimants, including Mays, Russell, and Young.
Id. at 2.
After considering the evidence, the district court declined
to grant Mays any damages for lost past or future wages because
he “did not lose time from work nor does the evidence support a
finding that the boat accident will be a cause of future
disability.” Crescent Ship I at 4. The district court awarded

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5
Mays $2,585.82 for medical expenses through June of 2003, but it
declined to grant him any further medical expenses due to lack of
credible continuing symptoms. Id. The district court did not
award Mays any damages for future pain and suffering, but it did
award him $2,500 for past pain and suffering, “taking into
consideration the amount of treatment required and the time
needed to recover from the legitimate soft-tissue injury, but
also taking into account Mays’s lack of credibility and
unnecessary prolongation of his treatment program.” Id. at 4-5.
Similarly, the district court also declined to grant Russell
any damages for lost or future wages, noting that he was never
placed on work restriction, and stating that it did “not find
credible Russell’s claims that he is or ever was unable to work.”
Crescent Ship I at 6. The district court did grant Russell
$1,547 to cover his medical expenses through May of 2003, but it
declined to award him any further medical expenses, again,
largely based on a lack of credible continuing symptoms. Id. at
7. The district court did not award Russell any damages for
future pain and suffering, but it did award him $1,500 for pain
and suffering based on the soft tissue injury he suffered as a
result of the accident.
Young did not make a claim for lost wages, but he did claim
past and future pain and suffering damages as well as medical
expenses. Noting that Young was both “fully recovered and
gainfully employed,” and based on in part its finding that Young

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6
was not a “particularly credible” witness, the district court
granted Young $4,022 for his medical expenses and $8,000 “in
general damages.” Crescent Ship I at 26.
In its opinion in Crescent Ship I, the district court
omitted prejudgment interest from its calculations of the various
damage awards for Mays, Russell, Young, and the other nineteen
original claimants. Nineteen of the original claimants,
including Young but not including either Mays or Russell, filed a
total of three motions for the overlooked prejudgment interest
after the district court filed its opinion. One of these
motions, filed on behalf of thirteen of the original claimants,
including Young, was timely filed. The other two motions, filed
on behalf of six of the original claimants, were not timely
filed. The district court disposed of these postjudgment motions
in a single order filed on April 20, 2005. See In re Crescent
Ship Service, No. 03-2107, at 1-3, 2005 WL 1038652 (E.D. La. Apr.
20, 2005) [hereinafter “Crescent Ship II”]. In this order, the
district court pointed out that none of the claimants “made any
mention of prejudgment interest in their respective proposed
findings of fact,” but it acknowledged that it had “overlooked
the issue” as all of the original claimants “did pray for
prejudgment interest in their original Complaints.” Crescent
Ship II, at 2.
Therefore, the district court granted the claim for
prejudgment interest by the group of thirteen claimants,

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including Young, who timely filed their postjudgment motion, and
it ordered them to bring a new motion to set an accrual date and
an interest rate. However, the district court denied the
postjudgment motions for prejudgment interest of six other
claimants because they were filed “over two weeks late,” noting
that under FED. R. CIV. P. 59(e), a postjudgment motion to amend a
judgment for prejudgment interest “must be brought within 10
working days of the entry of the final judgment.” Crescent Ship
II, at 2-3 (citing, inter alia, Osterneck v. Ernst & Whinney, 489
U.S. 169, 174-77 (1989)). Mays and Russell do not mention these
motions or the district court’s order in Crescent Ship II in
their brief before this court, and there is no indication in the
record that either ever filed a postjudgment motion to amend for
prejudgment interest, timely or otherwise.
In this appeal, all three plaintiffs argue that this court
should review their testimony and the medical evidence, vacate
the decision of the district court, and grant them more
“adequate” damages. In addition, Mays and Russell argue that the
district court erred by failing to award them prejudgment
interest. In response to the plaintiffs’ common argument, the
defendants point out that the factual findings of the district
court, including damages, are binding unless clearly erroneous.
The defendants also argue that this court should not consider the
prejudgment interest argument advanced by Mays and Russell for
the first time on appeal.

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II. DISCUSSION
The jurisdiction of this court over the general claims
raised by all three plaintiffs, which is not contested by any
party to this appeal, is proper pursuant to 28 U.S.C. § 1291.
Before considering the plaintiffs’ common argument that the
district court erred in its credibility and damage
determinations, we must note that “[a] district court’s
determination of damages is a factual finding that will be set
aside only if clearly erroneous.” Canal Barge Co. v. Torco Oil
Co., 220 F.3d 370, 379 (5th Cir. 2000) (citing Marine Transp.
Lines, Inc. v. M/V Tako Invader, 37 F.3d 1138, 1140 (5th Cir.
1994)). Under this clearly erroneous standard, we will reverse a
district court’s determination of damages “only if we have a
definite and firm conviction that a mistake has been committed.”
Canal Barge, 220 F.3d at 375 (citing Mid-Continent Cas. Co. v.
Chevron Pipe Line Co., 205 F.3d 222, 229 (5th Cir. 2000)).
Moreover, this court has repeatedly held that “‘[t]he burden of
showing that the findings of the district court are clearly
erroneous is heavier’” when, as here, “‘the credibility of the
witnesses is a factor in the trial court’s decision.’” Canal
Barge, 220 F.3d at 375 (quoting Dunbar Med. Sys. Inc. v. Gammex
Inc., 216 F.3d 441, 453 (5th Cir. 2000)). In this appeal, the
plaintiffs have essentially reiterated the evidentiary claims and
factual assertions that they made before the district court,

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combined with the additional statement that the district court’s
contrary conclusions were clearly erroneous. However, we have
found the district court’s damage awards to be well-reasoned,
based as they are upon express references to medical evidence in
the record and specific, convincing descriptions of the
plaintiffs’ lack of credibility. We decline to disturb them.
Mays’ and Russell’s claim for prejudgment interest was
asserted in their complaint, but was not asserted in the Pre-
Trial Order (which operates as the final amendment to the
pleadings) or in their request for findings of fact and
conclusions of law. Nor did they file a motion under FED. R. CIV.
P. 59(e). It is, therefore, effectively being raised for the
first time on appeal, and we do not consider matters being raised
for the first time on appeal.
III. CONCLUSION
For the reasons given above, we AFFIRM the judgment of the
district court.

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