Magee v. Florida Marine, LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS REED MAGEE 	CIVIL ACTION
VERSUS 	NO. 22-3835
FLORIDA MARINE, LLC, ET AL. 	SECTION: “P” (5)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a negligence and unseaworthiness action brought by Plaintiff, Nicholas Magee,
pursuant to the Jones Act and general maritime law against his employer and vessel owner and
operator, Florida Marine, LLC, Florida Marine Transporters, LLC, and PBC Management, LLC.
Plaintiff seeks damages for personal injuries he sustained while working on the Ohio River as a
deckmate aboard the M/V JOHN PASENTINE II, an inland towing vessel.
This case was tried without a jury from July 29, 2024 to August 2, 2024. The Court has
carefully considered the testimony of all the witnesses, the exhibits entered into evidence during
the trial, and the record. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court
hereby enters the following findings of fact and conclusions of law.
To the extent that any findings of fact may be construed as a conclusion of law, the Court
hereby adopts them as such. To the extent that any conclusions of law constitute a finding of fact,
the Court adopts them as such.
I. 	FACTUAL BACKGROUND
1. 	The plaintiff in this matter is Nicholas Magee, a resident of Pine, Louisiana. At the time of
the March 6, 2022 incident giving rise to this litigation, he was employed by the defendants
and was working as a member of the crew of the M/V JOHN PASENTINE II. Mr. Magee
was 26 years old at the time of the incident.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 1 of 52

2
2. 	The defendants in this matter are Florida Marine, LLC, Florida Marine Transporters, LLC,
and PBC Management, LLC (collectively referred to herein as “Florida Marine”). Florida
Marine, LLC, is a limited liability company organized and existing under the laws of the
State of Louisiana and was the operator of the M/V JOHN PASENTINE II at the time of
the incident. Florida Marine Transporters, LLC limited liability company organized and
existing under the laws of the State of Delaware. 	Florida Marine Transporters was
originally listed on the M/V JOHN PASENTINE II’s COI as the operator of the vessel.
PBC Management, LLC is a limited liability company organized and existing under the
laws of the State of Florida. 	PBC Management, LLC is the staffing affiliate of Florida
Marine, LLC. PBC Management is the nominal employer of Mr. Magee.
3. 	The M/V JOHN PASENTINE II is a 4000 HP towing vessel, 116 feet in length, bearing
Official Number 1314985.1
4. 	In the days leading up to the incident, the M/V JOHN PASENTINE II (also referred to
herein as “the Vessel”) was operating on the Ohio River, pushing multiple barges (usually
15 at a time, lashed together into a “tow”) up and down the river. The conditions on the
Ohio River at that time included extremely high water and a strong current. The route in
question required the Vessel to navigate through locks on a routine basis and also to drop
and pick up barges.2
5. 	At the time of Mr. Magee’s incident, the M/V JOHN PASENTINE II had aboard it two
wheelhouse personnel (the master and pilot), two engineers, and three deckhands. Mr.
Magee was stationed aboard the M/V JOHN PASENTINE II serving as a deckmate, which
fits within the deckhand category. Other members of the M/V JOHN PASENTINE II’s
1 Defense Exhibit 14, “M/V JOHN PASENTINE II Certificate of Inspection. “
2 Trial Testimony of Nicholas Magee; Trial Testimony of David Spencer; Defense Exhibit 6, “Marine Incident Report.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 2 of 52

3
crew included Captain David Spencer, its master, Curtis “Peewee” Howe, its pilot,
engineers Mark Maselli and Charlie Kirkham, and deckhands Willis Rushing and Bryceton
Scott.3
6. 	The majority of the crew on the vessel would work alternating six-hour watches. On each
watch, one wheelman, one engineer, and one deckhand would be awake and working.
7. 	In the days leading up to the incident, Willis Rushing held the front watch with Captain
Spencer, working from 6:00 a.m. to 12:00 p.m. (noon) and 6:00 p.m. to 12:00 a.m.
(midnight). At the time of the incident, Mr. Rushing had worked as a deckhand for less
than two months. He was considered a “green deckhand” and was not allowed to do any
deck work by himself because of his inexperience.4
8. 	Bryceton Scott stood the back watch with the pilot, Mr. Howe, working from 12:00 p.m.
(noon) to 6:00 p.m. and 12:00 a.m. (midnight) to 6:00 a.m. Mr. Scott had less than four
months of experience as a deckhand. And like Mr. Rushing, Mr. Scott was also considered
a “green deckhand” and was not allowed to do any deck work by himself because of his
inexperience.5
9. 	Mr. Magee was assigned to work the “call watch.” Mr. Magee testified that, as he
understood his watch assignment, he was required to work from 6:00 a.m. to 6:00 p.m.,
as well as any other time outside of his watch period when a deckhand was needed, which
included when the vessel went through a lock, when the vessel moored, when a tow
needed to be built, or any other time a deckhand needed to go out on tow.6 Because the
3 Defense Exhibit 6, “FMT Marine Incident Report.”
4 Joint Exhibit 1, Deposition Testimony of Willis Rushing.
5 Joint Exhibit 1, Deposition Testimony of Bryceton Scott.
6 Trial Testimony of Nicholas Magee.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 3 of 52

4
other two deckhands were green and could not do any deck work by themselves, Mr.
Magee claims he was severely overworked prior to the incident.
THE INCIDENT
10. 	On March 6, 2022, at 9:35 p.m., the Vessel arrived in Catlettsburg, Kentucky, where it
planned to refuel at Mid America Fuels.7 Before it could tie up at Mid America Fuels, the
Vessel first needed to drop off its tow at a nearby fleet. Mr. Magee was off watch as the
Vessel was approaching Catlettsburg, so Captain Spencer instructed Mr. Rushing to go
wake him. Captain Spencer also instructed Mr. Rushing that he and Mr. Magee needed to
remove the trash from the Vessel during their stop at Mid America Fuels.8
11. 	At the Catlettsburg, Kentucky location, Mid-America Fuels operates a fuel flat (also
referred to as a fuel barge), a dock where vessels can discard trash, and a “boat store”
where crewmembers can purchase various personal items or cigarettes. The dock and boat
store are located shoreside. The fuel barge runs parallel to the dock, floating in the river
and connected to the dock via mooring lines. When a vessel stops at Mid America Fuels,
it moors to the opposite side of the fuel barge from the dock.
12. 	The Vessel arrived at Mid America Fuels at about 10:05 p.m.9 Once the fuel lines were
hooked up, Mr. Magee and Mr. Rushing began unloading the trash from the Vessel.10
13. 	The only way to get from the Vessel to Mid America’s dock (where the dumpsters were
located) was to walk across the fuel barge and then to step from the fuel barge to the dock,
specifically the stairway of the dock.11
7 Plaintiff’s Exhibit 8, “Vessel Logs.”
8 Joint Exhibit 1, Deposition Testimony of Willis Rushing.
9 Plaintiff’s Exhibit 1, “AIS Playback.”
10 Joint Exhibit 1, Deposition Testimony of Willis Rushing.
11 Trial Testimony of Nicholas Magee; Plaintiff’s Exhibit 2, “Vessel CCTV Camera 19.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 4 of 52

5
14. 	There is generally a gap of about 8 to 12 inches between the fuel barge and dock.12 On the
night of the incident, however, the gap between the fuel barge and the dock was wider than
usual. 13
15. 	To carry out the trash removal task, Mr. Rushing was moving the trash bags from the Vessel
to the fuel barge, and then Mr. Magee was taking the trash bags from the fuel barge, across
the gap to the dock, and then up to the dumpsters.14
16. 	Mr. Magee had successfully crossed the gap between the fuel barge and dock three to four
times prior to the incident. On what Mr. Magee described as his fourth or fifth trip removing
trash, he fell between the fuel barge and dock, into the Ohio River.15
17. 	Video footage of the incident was captured by one of the cameras on the M/V JOHN
PASENTINE II.16
18. 	The very brief portion of the video that was saved shows Captain Spencer standing at the
edge of the fuel barge, where one would cross from the fuel barge to the stairway on the
dock. Next, it shows Mr. Magee walking across the fuel barge with a trash bag in each
hand. When Mr. Magee reaches the edge of the fuel barge, he stands next to Captain
Spencer for approximately 10 seconds. Mr. Magee then begins to step across the gap with
his left leg. As he places his left leg onto the stairway of the dock, Mr. Magee loses his
balance and falls backwards into the Ohio River, in between the fuel barge and dock.
Captain Spencer then leans down from the fuel barge and assists Mr. Magee out of the
water and onto the landing area at the base of the dock’s stairway. Mr. Magee stays seated
12 Trial Testimony of Nicholas Magee; Trial Testimony of David Spencer.
13 Trial Testimony of Nicholas Magee; Trial Testimony of David Spencer.
14 Joint Exhibit 1, Deposition Testimony of Willis Rushing; Trial Testimony of Nicholas Magee.
15 Trial Testimony of Nicholas Magee.
16 Plaintiff’s Exhibit 2, “Vessel CCTV Camera 19.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 5 of 52

6
on the landing area for approximately one minute before stepping back across the gap, onto
the fuel barge, and walking back to the Vessel. The video cuts off just as Captain Spencer
begins to cross the gap.17
19. 	After returning to the Vessel, Mr. Magee took a shower. When he got out of the shower, he
realized his right knee was swollen. He told Captain Spencer about his knee, and Captain
Spencer reported it to the Senior Port Captain, who sent someone to take Mr. Magee off
the boat and to the hospital.18
20. 	The configuration of the fuel barge, the dock, and the dock’s stairway are shown in the
photograph below.
In this photograph, which was extracted from the video footage admitted into evidence,
Mr. Magee is crossing the fuel barge with trash in hand, and Captain Spencer is standing
at the edge of the fuel barge near the dock’s stairway.
17 Plaintiff’s Exhibit 2, “Vessel CCTV Camera 19.”
18 Trial Testimony of Nicholas Magee.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 6 of 52

7
CONDITIONS AT THE TIME OF THE INCIDENT
21. 	Mr. Magee was required to remove trash from the Vessel at nighttime while it was raining.19
22. 	Mr. Magee testified that the gap was between one and a half to two feet wide.20 The video
footage of the incident shows Mr. Magee falling backwards and somewhat to the side,
through the gap.21 Thus, the gap had to be at least as wide as Mr. Magee is from shoulder
to shoulder. Captain Spencer testified that he noticed the fuel barge was gapped out “pretty
wide.”22
23. 	Mr. Howe, the Vessel’s pilot, testified that he knew the fuel barge at Mid America Fuels
had a tendency to gap out further from the dock when a vessel moored to the fuel barge,
and he also knew that it was possible to close the gap by maneuvering the Vessel a certain
way because he had done so on more than one occasion during prior stops at this facility.
Mr. Howe testified that he did not close the gap on the night of the incident because no one
asked him to. He relieved Captain Spencer from the wheelhouse after the Vessel was
already moored alongside the fuel barge.23
24. 	In addition to the wide gap Mr. Magee had to cross from the fuel barge to the fuel flat, the
Court finds by a preponderance of the evidence that the vertical distance between the fuel
barge and the landing area at the base of the stairway was too far for Mr. Magee to safely
step from the fuel barge to the landing area, forcing Mr. Magee to step across onto a
narrower space, i.e., one of the steps of the stairway.
19 Defense Exhibit 6, “FMT Marine Incident Report.”
20 Trial Testimony of Nicholas Magee.
21 Plaintiff’s Exhibit 2, “Vessel CCTV Camera 19 zoomed.”
22 Trial Testimony of David Spencer.
23 Trial Testimony of Curtis Howe.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 7 of 52

8
a. 	At trial, Mr. Magee testified that he could not have stepped from the fuel barge to
the base of the stairs because the base of the stairs was about three to four feet below
the fuel barge.24 Thus, given the wider-than-normal horizontal gap he was
navigating, he could not also step down three to four feet.
b. 	Florida Marine’s experts testified that the fuel barge was only three inches above
the stairway’s landing area. To reach this conclusion, one of the experts relied on
measurements taken during an inspection of the dock, which revealed that the
handrail located at the base of the stairway was fixed to the wall approximately 38
inches above the ground. Then, by looking at a video taken from the upper deck of
the Vessel, the expert determined the handrail was in line with Captain Spencer’s
waist. With this information, the expert opined that the handrail would have been
approximately 35 inches above the base of the fuel barge, which would make the
stairway’s landing area approximately 3 inches below the base of the fuel barge.25
The Court finds this opinion to be unreliable. To reach this conclusion, the experts
used camera footage from the upper deck of the Vessel to determine the relative
positioning of the handrail to Captain Spencer. But this camera angle inaccurately
depicts the reality of where the handrail (or any part of the dock) was in comparison
to the fuel barge and the people standing on it. The photo below reveals how the
positioning of objects relative one another changes depending on the angle from
which you view the objects:26
24 Trial Testimony of Nicholas Magee.
25 Trial Testimony of Robert Borison; Trial Testimony of Michael Kuzel.
26 Plaintiff’s Exhibit 62, “Side by Side Perspectives.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 8 of 52

9
Thus, the Court is not persuaded by the expert testimony that Mr. Magee could have
used the handrail and stepped down onto the base of the stairway instead of onto
the narrow stair.
c. 	In addition to Mr. Magee’s testimony, the Court’s finding is further supported by
the fact that Captain Spencer himself did not cross by stepping onto the base of the
stairway. Captain Spencer testified that there was no handrail that was accessible to
him, and, instead, he leaned over the gap and placed his hand on the stairs and then
stepped across.27 The video of the incident cuts off just as Captain Spencer begins
to move his leg across. The video does show Captain Spencer placing his hands on
the stairway as he described in his testimony, and as the video cuts off it appears as
if he is placing his foot on the third step from the bottom, which is the same step
Mr. Magee attempted to cross to when he fell into the river.28
27 Trial Testimony of David Spencer.
28 Plaintiff’s Exhibit 2, “Vessel CCTV Camera 19 zoomed.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 9 of 52

10
d. 	Additionally, the video footage also shows the moment Mr. Magee steps back
across the gap after the incident. Notably, Mr. Magee had just been sitting on the
ground at the base of the stairway. When he moves to the standing position, he does
not step directly across from the landing area. Instead, he walks up the first step of
the stairway, and then crosses to the fuel barge, where Captain Spencer and another
crewmember are waiting to help him across. And based on Mr. Magee’s body
movement, it appears that even as he is crossing to the fuel barge from the first step,
he is having to step upwards a bit to reach the fuel barge. The fact that Mr. Magee
did not step across from the landing area and that the crew is waiting to help him
across in the space where he would cross over from one of the steps on the stairway
also lead the Court to find that, more likely than not, the vertical distance between
the fuel barge and the stairway’s landing area was too far to safely step from one to
another while also trying to navigate the horizontal gap.
MR. MAGEE’S CLAIM THAT HE WAS OVERWORKED
25. 	Mr. Magee claims that he was overworked in violation of federal law and company policy.
26. 	Under 46 C.F.R. § 140.205(b), “[t]owing vessels with a Towing Safety Management
System (TSMS) must be operated in accordance with the TSMS applicable to the vessel.”
27. 	Florida Marine’s TSMS, specifically SMS-07-13 Watch Standing and Rest Period
Management, provides that “crewmembers on a towing vessel are permitted to work no
more than 15 hours in any 24-hour period or more than 42 hours in any 72-hour period.”29
28. 	Mr. Magee testified that the hours he worked in the days leading up to the accident are
reflected in the 96-Hour Work/Rest History Worksheet that he filled out after this litigation
29 Defense Exhibit 94, “SMS 07-13.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 10 of 52

11
ensued, at the request of one of his expert witnesses, Dr. Charles Czeisler. Mr. Magee
testified that, despite the lapse in time between when the accident occurred and when he
filled out the worksheet, he was able to accurately fill out the form by referring to the Vessel
Logs for the days in question, which reflect what the Vessel was doing each day and at
what times. Magee testified he was able to determine, based on what the Vessel was doing,
whether he would have been working and for how long. Mr. Magee also marked himself
as working from 6:00 a.m. to 6:00 p.m. each day, regardless of what the Vessel was doing,
because, according to him, this was his set watch period, and he would have been required
to be working even if there was no need for him to go out on tow. According to Mr. Magee,
he was required to work 18 hours on March 4, 22 hours on March 5, and 16.5 hours on
March 6.30
29. 	The testimony of the other two deckhands, Mr. Rushing and Mr. Scott, supports Mr.
Magee’s claim that he was overworked. Mr. Rushing testified that he observed Mr. Magee
having to work in excess of 15 hours. He testified that Mr. Magee “would stay up just about
all night and part of the day working, doing whatever they asked him to do,” and that this
was due, at least in part, to the fact that the only other deckhands on the Vessel were green.31
Mr. Rushing also testified that Mr. Magee’s shift as the man on call watch included working
from 6:00 a.m. to 6:00 p.m.32 And Mr. Scott, who worked the back watch on the days
leading up to the incident, also testified that he observed Mr. Magee working in excess of
15 hours a day in the days leading up to the incident.33 He testified that anytime he was up
30 Trial Testimony of Nicholas Magee; Plaintiff’s Exhibit 101.
31 Joint Exhibit 1, Deposition Testimony of Willis Rushing.
32 Joint Exhibit 1, Deposition Testimony of Willis Rushing.
33 Joint Exhibit 1, Deposition Testimony of Bryceton Scott.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 11 of 52

12
working, Mr. Magee was also up because of the work that needed to be done.34 Mr. Scott
further testified that even when he not on watch, he was not sleeping the entire time and
would sometimes stay in the wheelhouse for a bit, and he would observe Mr. Magee up
and working during those times as well.35
30. 	At trial, Captain Spencer, Curtis Howe, and Mark Maselli all testified that Mr. Magee was
not working as much as he claims based on their opinion about the amount of deck work
that was required for the type of run they were on and the fact that Mr. Magee was working
the call watch, which in their opinion meant he was only working when needed and not
also on a set watch from 6:00 a.m. to 6:00 p.m. But each of these witnesses also testified
they could not say for a fact that Magee was not working the hours he claims because they
were not awake or on watch for all of those time periods and because they were not
specifically tracking Magee’s working hours.
31. 	Florida Marine also elicited testimony regarding what the term “call watch” means from
some of their experts with experience in the marine industry, all of whom testified that,
generally, a deckhand working call watch does not have a set watch schedule but instead
works as needed, when the vessel is doing something that requires additional deck crew,
such as going through locks or building or breaking tow.
32. 	It was the responsibility of the Vessel Master and the other Wheelman to ensure that a
Watch Change Checklist was completed every watch.36 The Watch Change Checklist was
Florida Marine’s method for logging the working hours of crewmembers.37 No Watch
34 Joint Exhibit 1, Deposition Testimony of Bryceton Scott.
35 Joint Exhibit 1, Deposition Testimony of Bryceton Scott.
36 Plaintiff Exhibit 32-19, “SMS 07-09.”
37 Joint Exhibit 1, Deposition Testimony of Chad Hidalgo; Joint Exhibit 1, Deposition Testimony of Timmy Callais.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 12 of 52

13
Change Checklist was completed at any time on March 4, 5, or 6 on the M/V JOHN
PASENTINE II.38
33. 	The last Watch Change Checklist to be completed prior to Mr. Magee’s incident was done
on March 3 by Captain Clayton Hunt, before Captain Spencer took over as Vessel Master.39
According to this document, on March 3, 2022, when Captain Hunt was Vessel Master, Mr.
Magee went on watch at 5:00 a.m. and went off watch at 5:00 p.m.40 Captain Spencer
testified that he never ordered Magee to work a 12-hour standing watch period, but he also
testified that when he boarded the Vessel and took over as Vessel Master, he did not change
Captain Hunt’s orders. This March 3rd document thus corroborates Mr. Magee’s testimony
that, as he understood his watch assignment on March 4, 5, and 6, it included a 12-hour
standing watch from 6:00 a.m. to 6:00 p.m. (or 5:00 a.m. to 5:00 p.m., depending on the
time zone).
34. 	Florida Marine’s corporate representative, Timmy Callais, testified that it is Florida Marine
policy to pay overtime to any crewmember who works over 12 hours in a day.41 Florida
Marine payroll documents show that in the pay period from March 14 to March 27, 2022,
i.e., the pay period following Mr. Magee’s incident, the deckhand working call watch on
the M/V JOHN PASENTINE II worked overtime multiple days during that pay period.42
For example, on March 15, 2022, the records reflect the deckhand worked a total of four
hours over the 12 hours for which he would receive regular pay. His overtime hours
included a two-hour period from 3:00 a.m. to 5:00 a.m. and another two-hour period from
38 Trial Testimony of David Spencer.
39 Plaintiff Exhibit 17.
40 At trial, the 6-hour watch periods were sometimes referenced as 5 o’clock to 11 o’clock, and other times were
referenced as 6 o’clock to 12 o’clock. This was explained away as a time zone difference and not as an actual change
in working hours.
41 Trial Testimony of Timmy Callais.
42 Plaintiff Exhibit 52-3–5.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 13 of 52

14
9:30 p.m. to 11:30 p.m. On March 16, 2022, this deckhand worked a total of two hours
over the 12 hours for which he would receive regular pay. The record states he worked
overtime from 10:00 p.m. to approximately 12:00 a.m. And on March 17, 2022, this
deckhand worked a total of four hours over the 12 hours for which he would receive regular
pay. His overtime hours are for a four-hour time period from 7:00 p.m. to 11:00 p.m. In
other words, this deckhand was paid for 16 hours worked on March 15, 14 hours worked
on March 16, and 16 hours worked on March 17. This record further corroborates Mr.
Magee’s testimony that the deckhand on call watch worked a 12-hour standing watch
period from 6:00 a.m. to 6:00 p.m. (or 5:00 a.m. to 5:00 p.m., depending on the time zone),
in addition to other time he was needed in service of the Vessel outside of that watch period,
as each of the hours for which this other deckhand was paid overtime falls outside of the
same 12-hour standing watch period Mr. Magee claims he was required to work on call
watch.43
35. 	Accordingly, the Court finds by a preponderance of the evidence that Mr. Magee’s work
schedule included a 12-hour watch from 6:00 a.m. to 6:00 p.m., plus anytime deck work
needed to be done outside of his watch window, and that, as a result, Mr. Magee was
43 Because Mr. Magee did not receive overtime pay, Florida Marine asks this Court to infer that he did not work in
excess of 12 hours on March 4, 5, or 6. The Court does not find this to be a reasonable inference to draw. Mr. Callais
testified that to receive overtime pay a deckhand would generally have to request the Captain to submit the overtime
request on the deckhand’s behalf at the end of the pay period. The Court has no reason to believe Captain Spencer
would have submitted a request for overtime pay on Mr. Magee’s behalf without Mr. Magee requesting Captain
Spencer to do so because Captain Spencer was not tracking Magee’s working hours, and he had no record reflecting
the number of hours Mr. Magee worked. Thus, the only way Mr. Magee would have received overtime pay is if he
had asked Captain Spencer to submit the request on his behalf. But Mr. Magee was taken off the Vessel and to the
emergency room shortly after the incident occurred. And due to his injuries, he never returned to the Vessel. That Mr.
Magee did not reach out to Captain Spencer to request overtime pay when he was no longer on the Vessel, and was
instead receiving medical treatment for the injuries he had recently sustained, does not lead the Court to the inference
that Mr. Magee must not have worked in excess of 12 hours a day.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 14 of 52

15
worked in excess of 15 hours a day on March 4, 5, and 6, and also worked in excess of 42
hours in the 72-hour period before the incident.
MR. MAGEE’S CLAIM THAT THE FUEL BARGE MOVED
36. 	Mr. Magee claims that the fuel barge moved as he was stepping across the gap, causing
him to fall.
37. 	The parties presented competing expert testimony on the issue of whether the fuel barge
moved.
38. 	Plaintiff’s expert, Captain Steven Cunningham, who was tendered as an expert in marine
electronics, AIS data, and marine accident investigation, testified that it was his opinion
that the fuel barge was not securely alongside the dock and was in motion during Mr.
Magee’s incident. Captain Cunningham reviewed the CCTV footage from the cameras that
were fixed to the M/V JOHN PASENTINE II’s upper and lower deck and that showed the
Mid America Fuels fuel barge and dock. He drew reference points on certain parts of the
fuel barge and dock that would not move when the video played. Then, he played the video
of the incident, and because you could see that the reference points stayed put but the parts
of the fuel barge and dock over which the reference points were drawn were no longer in
the same location as the reference points, he opined that this meant the fuel barge was in
motion during Mr. Magee’s incident.44
39. 	Florida Marine’s expert, Michael Kuzel, who was tendered as an expert in event
reconstruction, human factors, and biomechanics, performed a similar analysis but
determined that the fuel barge did not move at the time Mr. Magee was stepping from the
fuel barge to the dock. Mr. Kuzel explained that his conclusion is different because he
44 Trial Testimony of Steven Cunningham.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 15 of 52

16
considered the fact that the video footage comes from cameras that are fixed to the M/V
JOHN PASENTINE II, which is in and of itself susceptible to movement. And Mr. Kuzel
was able to determine that when there was movement depicted in the video, it was because
the M/V JOHN PASENTINE II was moving, not the fuel barge. He did so by placing
reference points on the fuel barge and on objects on the dock, such as the windows of a
building. The dock is spudded into the ground. Thus, the objects on the dock are permanent
fixed objects that would not move as a result of something like a passing vessel’s current.
Thus, Mr. Kuzel explained that when the video plays, and one sees that the objects on the
dock are no longer in line with the reference points that were drawn over them, the only
explanation is that the M/V JOHN PASENTINE II (the object with the camera attached to
it) moved. The dock that is spudded into the ground did not move. Next, he was able to
determine that the fuel barge did not move because the video shows the reference points
on the dock and the fuel barge moving the same way relative one another. In other words,
because it is known that the dock did not move, the fact that the video depicts the fuel
barge’s reference points shifting in a manner that is nearly identical to the shift of the dock’s
reference points means the fuel barge also did not move. Mr. Kuzel further opined that if
the fuel barge did move, it was “very, very slightly.” And he stated that from a human
factors standpoint, there is no evidence of any movement of the fuel barge that could have
disrupted Mr. Magee’s balance and caused him to fall.45
40. 	Comparing the methodologies of the two experts, the Court finds Mr. Kuzel’s testimony
on this issue to be more persuasive. The Court is particularly persuaded by Mr. Kuzel’s
testimony that was given in conjunction with the display of Plaintiff’s Exhibit 2A-0037 to
45 Trial Testimony of Michael Kuzel; Plaintiff’s Exhibit 2A-0037–0083.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 16 of 52

17
0083, which depicts the incident with Mr. Kuzel’s reference points from the moment Mr.
Magee begins to step across the gap until he begins to fall.
41. 	The Court acknowledges that the medical records from Mr. Magee’s visit to the emergency
room immediately after the incident note that Mr. Magee indicated to medical personnel
that the barge’s movement caused him to fall.46 The Court also acknowledges that one of
the other deckhands, Mr. Scott, testified that after the incident Captain Spencer told the
crew that the barge moving is what caused Mr. Magee to fall.47 The Court further
acknowledges Captain Spencer’s testimony that after Mr. Magee was out of the water but
while he was sitting on the platform of the dock, he warned Mr. Magee to move out of the
way because he was concerned the fuel barge was going to move in and crush his legs,48
which tends to corroborate Mr. Magee’s theory that the fuel barge was in motion.
42. 	The Court finds it is more likely than not that there were occasional movements of the fuel
barge over course of the one minute and 43 seconds of this incident that was captured on
camera.
43. 	Nevertheless, the Court also finds it more likely than not that the fuel barge did not move
as Mr. Magee was stepping from the fuel barge to the dock and, thus, that Mr. Magee’s fall
was not caused by any barge movement.
44. 	Because the Court finds that barge movement was not a contributing factor to Mr. Magee’s
fall, the Court need not determine whether any barge movement was caused by the M/V
TRISTATE.
46 Plaintiff’s Exhibit 5, “Kings Daughters Medical ED Note.”
47 Joint Exhibit 1, Deposition Testimony of Bryceton Scott.
48 Trial Testimony of David Spencer.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 17 of 52

18
EXPERT TESTIMONY REGARDING THE CAUSE OF THE INCIDENT
45. 	Mr. Magee retained Dr. Charles Czeisler, Steven Cunningham, and Captain Michael Berry
to support his claims of negligence and unseaworthiness against Florida Maine.
46. 	Dr. Charles Czeisler was tendered as an expert in the areas of circadian and sleep science,
sleep disorders, fatigue risk management, and the impact of sleep deficiency on human
performance. Dr. Czeisler testified that based upon the hours Mr. Magee had been working
as reflected in the 96-Hour Work/Rest History Worksheet, Mr. Magee would have been
suffering from chronic sleep deficiency at the time of the incident. Dr. Czeisler further
testified that chronic sleep deficiency interferes with judgment, postural stability, ability to
maintain sway control, and it lengthens reaction time. It is Dr. Czeisler’s opinion that these
impairments degraded Mr. Magee’s perception and situational awareness and caused him
to lose his balance and fall into the gap between the barge and dock.49
47. 	Captain Steven Cunningham, Mr. Magee’s expert in marine electronics, AIS data, and
marine accident investigation, offered opinions in support Mr. Magee’s claim that the fuel
barge was in motion during the incident. For the reasons stated above, this Court has
determined that it is more likely than not that the fuel barge was not in motion as Mr. Magee
was stepping from the fuel barge to the dock. Captain Cunningham’s second opinion
offered in this case is that the fuel barge moved due to the passing of the M/V TRISTATE.50
This issue of fact is now moot given the Court’s express factual finding that the fuel barge
did not move as Mr. Magee was stepping from the fuel barge to the dock.
48. 	Captain Michael Berry was tendered as an expert in the areas of towboat navigation, safety,
and operations. Captain Berry provided three opinions at trial. The first two opinions he
49 Trial Testimony of Dr. Charles Czeisler.
50 Trial Testimony of Captain Steven Cunningham.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 18 of 52

19
offered are now moot.51 Captain Berry’s third opinion, however, is not moot. Captain Berry
opined that Captain Spencer and Pilot Howe were not competent to serve as vessel master
or wheelman based on their lack of knowledge of Florida Marine’s TSMS and their
respective duties and responsibilities set forth in the TSMS.52
49. 	Florida Marine retained Robert Borison, Captain Bruce Darst, and Michael Kuzel.
50. 	Robert Borison was tendered as an expert in the areas of marine safety and safety that
involves transfers between docks and vessels. Mr. Borison opined that Mr. Magee should
have stepped to the landing area at the base of the stairways rather than the narrow step on
the stairway. He further opined that, based on what he observed in a photo of the dock’s
stairway, the stairs were covered with diamond plate and a type of paint that resulted in a
slippery condition, particularly if the surface was wet. 	He also testified that Mr. Magee
was in charge of his own safety responsibility and should have used stop work authority
rather than crossing the gap. In essence, Mr. Borison opines that there are unsafe conditions
present at the Mid-America Fuels, but that Mid-America Fuels is responsible for its unsafe
conditions, and Mr. Magee is responsible for not following safety protocols that could have
prevented the accident.53
51. 	Captain Bruce Darst was tendered as an expert in the areas of inland towing, safety, and
operation. He testified that if Mr. Magee had complied with Florida Marine’s safety
policies, then the accident would have been prevented.54
51 Captain Berry’s first opined that Mr. Magee was overworked. The Court was able to reach this conclusion on its
own without an expert and thus did not reference Captain Berry’s opinion in explaining the Court’s finding. Next,
Captain Berry opined that the fuel barge moved. Captain Berry’s testimony on this point was cumulative of Captain
Cunningham’s and not persuasive considering the more reliable methodology applied by Mr. Kuzel. Thus, the Court
did not reference his opinion in explaining the Court’s finding on this issue either.
52 Trial Testimony of Captain Michael Berry.
53 Trial Testimony of Robert Borison.
54 Trial Testimony of Captain Bruce Darst.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 19 of 52

20
52. 	As stated above, Michael Kuzel was tendered as an expert in the areas of event
reconstruction, human factors, and biomechanics. In addition to his opinion that the fuel
barge did not move, Mr. Kuzel opined that from a human factors and ergonomics
perspective, Mr. Magee fell because he attempted to step up onto the third step of the dock’s
stairway, which required a significant overextension of his body and transfer of weight onto
the set of steps Mr. Magee described as being slippery. According to Mr. Kuzel, the video
of the incident shows that as Mr. Magee attempted to shift the transfer of weight up and
over onto his left leg, the step did not provide sufficient surface friction to resist the
application of force by his shoe, and his shoe began to slip. Mr. Magee’s balance was
perturbed by the slip, and he tried to readjust by quickly bringing his right leg up, but there
was nowhere for his right leg to go, so Mr. Magee fell into the water. Mr. Kuzel further
opined that from a biomechanics and human factors perspective, he sees no evidence that
fatigue was a factor in causing Mr. Magee’s fall. Mr. Kuzel agreed with Dr. Czeisler’s
description of the effects fatigue can have on a person, including that a person with chronic
sleep deficiency 	will typically show signs of 	impairment such 	as 	balance-related
performance issues. But Mr. Kuzel testified that there is nothing in the video of the incident
that demonstrates that Mr. Magee was experiencing balance-related issues.55
53. 	Based on all of the documentary evidence and the testimony presented at trial, the Court
finds by a preponderance of the evidence that Mr. Magee slipped and fell into the Ohio
River because the method of work was unsafe given the distance between the fuel barge
and dock, the wet stairs, and the inability to step from the fuel barge to the landing area at
the base of the stairway. The record does not show that Mr. Magee was exhibiting any signs
55 Trial Testimony of Michael Kuzel.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 20 of 52

21
of chronic sleep deficiency. Thus, the Court cannot find that it is more likely than not that
any impairments due to sleep deficiency contributed to Mr. Magee’s fall.
MR. MAGEE’S MEDICAL TREATMENT AND INJURIES
54. 	At 3:32 a.m. on March 7, 2022, Mr. Magee was admitted to the Kings Daughters
Emergency Room in Kentucky after the incident.56 Magee was then flown home to see an
orthopedist, Dr. Paul van Deventer. On March 10, 2022, Dr. van Deventer evaluated Magee
and was concerned he had a torn meniscus. He ordered an MRI and placed Mr. Magee in a
knee brace for stabilization. On March 14, 2022, Dr. van Deventer reviewed the MRI, and
it was the impression of both the radiologist and Dr. van Deventer that the MRI showed an
acute tear of the medial meniscus in the right knee. Dr. van Deventer determined Mr. Magee
would need arthroscopic surgery to address the longitudinal oblique tear peripheral,
posterior horn medial meniscus.57
55. 	On March 23, 2022, Magee underwent the arthroscopic surgery with Dr. van Deventer.
During the procedure, Dr. van Deventer did not see any meniscal tear, but he did see an
impact injury to the cartilage of Mr. Magee’s knee, so he performed a plica resection and
microfracture repair of a medial femoral condyle defect.58
56. 	On March 29, 2022, Mr. Magee returned to Dr. van Deventer for a follow-up appointment
post-surgery. Mr. Magee was complaining of thigh and leg swelling and pain. 	Dr. van
Deventer ordered an ultrasound of Magee’s leg, which revealed an occlusive deep vein
thrombosis (“DVT”) in 1 of 2 peroneal and posterior tibial veins and nonocclusive DVT in
56 Plaintiff’s Exhibit 58, “3.7.22 Kings Daughters.”
57 Trial Testimony of Dr. van Deventer; Plaintiff’s Exhibit 58, “3.10.22 van Deventer;” Plaintiff’s Exhibit 58, “3.14.22
van Deventer.”
58 Trial Testimony of Dr. Paul van Deventer; Plaintiff’s Exhibit 58, “3.23.22 Surgery.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 21 of 52

22
the other perineal and posterior tibial veins.59 Magee reported to the emergency room at St.
Tammany Parish Hospital with chest pain, shortness of breath, knee pain, calf pain and
occasional color change of toes. Magee’s DVT diagnosis was confirmed, and he was
prescribed Xarelto (a blood thinner).60
57. 	On April 4, 2022, Mr. Magee woke up coughing up blood.61 He had a previously scheduled
follow-up appointment with Dr. van Deventer this day. During the visit, Dr. van Deventer
aspirated 90 cc of blood from Magee’s knee and recommended that Mr. Magee schedule
an appointment with a cardiologist or primary care physician about his complaints of
shortness of breath.62 After calling a cardiologist’s office to schedule an appoint, Mr. Magee
was advised to report to the emergency room immediately. Mr. Magee was admitted to St.
Tammany Parish Hospital and diagnosed with a pulmonary embolism in his right lung.63
58. 	Mr. Magee remained at St Tammany Parish Hospital until April 7, 2022. The hospital
records confirm that his DVT and pulmonary embolism were provoked by the March 23,
2022 arthroscopic surgery. He was discharged with a blood thinner, a heart rate monitor,
an oxygen reader, and a prescription for home health.64
59. 	On April 21, 2022, Mr. Magee presented to Northlake Pulmonary Associates for an
outpatient follow-up appointment following his pulmonary embolism. Mr. Magee was
cleared for return to work from a pulmonary standpoint once cleared by orthopedist.65 Mr.
59 Plaintiff’s Exhibit 58, “3.29.22 van Deventer,” “3.29.22 Doppler Evaluation.”
60 Plaintiff’s Exhibit 58, “3.29.22 STPH.”
61 Trial Testimony of Nicholas Magee.
62 Plaintiff’s Exhibit 58, “4.4.22 van Deventer.”
63 Plaintiff’s Exhibit 58, “4.4.22 STPH.”
64 Plaintiff’s Exhibit 58, “4.4.22 STPH.”
65 Defense Exhibit 190, “Cressy Medical Record of Nicholas Magee”.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 22 of 52

23
Magee was also cleared for physical therapy from a pulmonary standpoint, with activity to
be determined by orthopedist.66
60. 	On May 23, 2022, Mr. Magee saw Dr. van Deventer for another follow-up appointment. At
this point, Mr. Magee was two months post-arthroscopic surgery. Mr. Magee had been
attending physical therapy after being cleared to do so following his pulmonary embolism.
Mr. Magee was complaining of ongoing knee pain and had trace joint effusion in his right
knee. Dr. van Deventer recommended 4-6 additional weeks of physical therapy with
“hopeful release in 6 weeks.”67
61. 	On May 25, 2022, Mr. Magee reported to the emergency room at St. Tammany Parish
Hospital complaining of right thigh pain and swelling for a few days. The record states he
informed the medical providers that he recently had a DVT and pulmonary embolism
following a knee surgery and that was concerned he had developed another blood clot. The
record notes that Mr. Magee had moderate swelling to the right lower extremity. The record
further notes that the duplex ultrasound of his right lower extremity was negative for deep
vein thrombosis.68
62. 	On June 20, 2022, Mr. Magee again presented for a follow-up appointment with Dr. van
Deventer. Mr. Magee was complaining of “giveaway weakness” in his right leg. Dr van
Deventer noted Mr. Magee had been “actively participating in physical therapy.” In his
assessment/plan, he stated Mr. Magee could participate in light type functional activities.
He limited Mr. Magee to carrying a maximum of 20 pounds (10 pounds constantly). And
66 Plaintiff’s Exhibit 58, “4.21.22 Northlake Pulmonary.”
67 Trail Testimony of Dr. Paul van Deventer; Plaintiff’s Exhibit 58, “5.23.22 van Deventer.”
68 Plaintiff’s Exhibit 58, “5.25.22 St. Tammany.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 23 of 52

24
he stated that based on Magee’s appearance that day, he believed Magee would reach
maximum medical improvement (MMI) in six months with no anticipated impairment.69
63. 	On July 19, 2022, Mr. Magee presented for a follow-up visit with Dr. van Deventer. He
complained of fatigue-type issues. Dr. van Deventer elevated Mr. Magee work status to
medium duty, which allows him to walk, sit, and stand as tolerated; occasionally life up to
60 pounds; and carry up to 40 pounds.70 At this time, Dr. Van Deventer’s notes indicate he
was anticipating MMI in three months, which would have been mid-October 2022.
64. 	On July 29, 2022, an email from Debbie Bassil (a Florida Marine Nurse Care Manager who
attended most doctors’ appointments with Mr. Magee)71 to Janice Tyson (Florida Marine’s
Claims Manager) states Mr. Magee was not in physical therapy at that time, as Dr. van
Deventer was only directing Mr. Magee to do a home exercise program. However, Mr.
Magee was reporting that he was still having problems going down steps with full weight
bearing and that his knee was still buckling. Ms. Bassil inquired about Ms. Tyson’s
thoughts on Mr. Magee completing a work conditioning program, and she stated she did
not see Mr. Magee being able to get to full unrestricted work release on his own.72
65. 	On August 30, 2022, Mr. Magee presented for a follow-up visit with Dr. van Deventer. He
had some swelling in his right knee and was complaining of activity related swelling and
discomfort. Dr. van Deventer kept Mr. Magee’s work restrictions the same as the July 19,
2022 visit, but he noted that he did not anticipate unrestricted work release until 2023 and
that MMI would likely be March 1, 2023.73
69 Plaintiff’s Exhibit 58, “6.20.22 van Deventer.”
70 Trial Testimony of Dr. Paul van Deventer; Plaintiff’s Exhibit 58, “7.19.22 van Deventer.”
71 Trial Testimony of Nicholas Magee; Trial Testimony of Janice Tyson.
72 Plaintiff’s Exhibit 44-93, “July 29, 2022 email from Bassil to Tyson.”
73 Plaintiff’s Exhibit 58, “8.30.22 van Deventer.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 24 of 52

25
66. 	August 30, 2022 was Mr. Magee’s last appointment with Dr. van Deventer. Florida Marine
urges the Court to find from these records that Mr. Magee was steadily improving and was
on the trajectory to reach MMI by March 2023 and unrestricted work release by January 1,
2023. The Court finds that what these records actually reflect, which was confirmed by Dr.
van Deventer’s testimony at trial, is that Mr. Magee’s functionality was not steadily
progressing, nor could Dr. van Deventer accurately predict when Mr. Magee would return
to full functionality. Between the months of June, July, and August 2022, Mr. Magee’s
anticipated MMI date (which included full improvement, with no impairment) changed
from December 2022 to October 2022 to March 2023.74 Moreover, Dr. van Deventer’s
notes that Mr. Magee was not having any mechanical issues with his knee, that he was
responding well to his home therapy program, and that had the ability to do “frequent
walking, standing, and stair climbing” are inconsistent with other records describing Mr.
Magee’s functionality during that period.75
67. 	On August 31, 2022, for example, Mr. Magee presented for a “Physical Therapy Initial
Examination” with Rehab Dynamics. The observation notes from this exam state that Mr.
Magee had impaired gait, lacked proper heel/strike/toe off, had shortened stride length, and
was apprehensive with weightbearing.76 At trial, Devon Lockfield, the physical therapist
who conducted Mr. Magee’s initial examination, testified that in layman’s terms, what she
observed was that Mr. Magee was in pain when he moved his knee; he was not walking
74 Trial Testimony of Dr. Paul van Deventer; Plaintiff’s Exhibit 58, “6.20.22 van Deventer;” Plaintiff’s Exhibit 58,
“7.19.22 van Deventer;” Plaintiff’s Exhibit 58, “8.30.22 van Deventer.”
75 Plaintiff’s Exhibit 44-93, “July 29, 2022 email from Bassil to Tyson;” Plaintiff’s Exhibit 58-49, “8.31.22 Rehab
Dynamics.”
76 Plaintiff’s Exhibit 58, “8.31.22 Rehab Dynamics”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 25 of 52

26
very well; his balance was off; and he was not able to functionally move around as far as
walking and things like that.77
68. 	Between August 31, 2022 and September 26, 2022, Mr. Magee attended six physical
therapy sessions with Rehab Dynamics. He was consistently reporting pain and swelling
following physical therapy sessions and when doing activity at the house. For example, on
September 6, 2022, he reported that “he had some pain after last time and some swelling
but that is normal for me. I was up and down on the tractor all weekend which hurts my
knee, and it was as big as a watermelon the next day.” On September 12, 2022, he reported
that one of his physical therapy exercises was hurting his knee to the point that he was in
pain all weekend and had to sleep in the recliner for 2 or 3 nights. On September 14, 2022,
Mr. Magee reported that his knee was feeling the same. On September 26, 2022, Mr. Magee
reported activity-related swelling and pain in the knee, making it difficult for him to walk.
No physical therapy exercises were performed on this day, and the physical therapist
recommended Mr. Magee return to his doctor due to continued pain complaints.78
69. 	On October 5, 2022, Mr. Magee saw orthopedist Dr. Robert Bostick, III for a second
medical opinion. Dr. Bostick’s physical examination revealed significant antalgic gait,
swelling, significantly altered mechanics when trying to extend the knee, and exquisite
tenderness in his medial joint line and anteromedial joint to palpation. Dr. Bostick reported
that he suspected Mr. Magee was experiencing a direct knee issue and ordered an MRI of
Mr. Magee’s right knee to evaluate this issue.79
77 Trial Testimony of Devon Lockfield.
78 Plaintiff’s Exhibit 58, “8.31.22 Rehab Dynamics;” Plaintiff’s Exhibit 58, “9.6.22 Rehab Dynamics;” Plaintiff’s
Exhibit 58, “9.8.22 Rehab Dynamics;” Plaintiff’s Exhibit 58, “9.12.22 Rehab Dynamics;” Plaintiff’s Exhibit 58,
“9.14.22 Rehab Dynamics;” Plaintiff’s Exhibit 58, “9.26.22 Rehab Dynamics.”
79 Plaintiff’s Exhibit 58, “10.5.22 Bostick.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 26 of 52

27
70. 	On October 17, 2022, Mr. Magee saw Dr. Bostick to review the results of the MRI. The
MRI showed retropatellar edema, fluid within the knee, and evidence of a torn meniscus
of the posterior horn. Dr. Bostick compared the October 2022 MRI with the March 2022
MRI and noted that the torn meniscus was in the same location in both films. Dr. Bostick
stated that Mr. Magee required another arthroscopic surgery but wanted Mr. Magee to
undergo a doppler venous ultrasound of his leg to rule out DVT. Dr. Bostick also wanted
Mr. Magee to consult with a hematologist to confirm Mr. Magee did not have a protein
deficiency or some metabolic issue making him prone to blood clots given Mr. Magee’s
pulmonary embolism following his previous arthroscopic surgery, and to have an
appropriate plan to manage his blood clot risk with respect to the likely upcoming surgery.80
71. 	On October 27, 2022, Magee presented for an orthopedic IME with Florida Marine’s
selected orthopedist, Dr. Neil Duplantier. Dr. Duplantier placed Magee on sedentary type
duty writing, “Based off of my exam with the patient I think it will be difficult for him to
lift approximately 60 pounds as described at the most recent office visit with Dr. van
Deventer.” Dr. Duplantier confirmed Magee was experiencing significant pain. Dr.
Duplantier also confirmed that the first March 2022 MRI and second October 2022 MRI
were unchanged in terms of the medial meniscus.81
72. 	On 	November 	7, 	2022, 	Magee 	presented 	to 	Dr. 	Bostick 	showing 	no 	significant
improvement since his last visit. Dr. Bostick administered 1 cc of Celestone and 1 cc of
lidocaine and scheduled a follow up visit to assess Magee’s clinical result. In the meantime,
Dr. Bostick encouraged Magee to follow up with a hematologist as planned and stated he
80 Trial Testimony of Dr. Robert Bostick, III; Plaintiff’s Exhibit 58, “10.17.22 Bostick.”
81 Plaintiff’s Exhibit 58, “10.27.22 Duplantier.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 27 of 52

28
would try to refer Magee to a specialist regarding post-thrombotic syndrome given Magee’s
ongoing extremity complaints.82
73. 	On November 29, 2022, Magee was evaluated by hematologist, Dr. Kristen Sanfilippo, and
radiologist, Dr. Suresh Vedantham. During this visit, Mr. Magee also underwent a doppler
ultrasound that showed there was “chronic deep vein thrombosis” in one of Mr. Magee’s
posterior tibial veins. At trial, Dr. Sanfilippo explained that in March 2022 Mr. Magee was
diagnosed with DVT in four of his veins, and the DVT that appeared in this November 29,
2022 ultrasound was a chronic DVT that remained from his prior diagnosis in one of his
veins.83 During this November 29, 2022 visit, Dr. Vedantham confirmed that Mr. Magee’s
ongoing symptoms were consistent with post-thrombotic syndrome (PTS) of moderate
severity.84 Dr. Sanfilippo confirmed Magee’s DVT was provoked by his first arthroscopic
surgery and recommended that Magee take Lovenox (blood thinner) before his next surgery
and then apixaban (blood thinner) after the surgery. She also noted that Mr. Magee should
consider doing so for all future surgeries he may need.85 Doctors Vedantham and Sanfilippo
recommended that Magee should take Diosmin to help with blood flow and continue with
compression therapy.
74. 	On December 21, 2022, Mr. Magee met with Dr. Bostick to discuss Magee’s medical visits
and his clearance to undergo surgery.86
75. 	On January 27, 2023, Mr. Magee underwent his second arthroscopic surgery. Dr. Bostick
performed an extensive synovectomy, which he described as removing all of the inflamed
82 Plaintiff’s Exhibit 58, “11.7.22 Bostick.”
83 Trial Testimony of Dr. Kristin Sanfilippo.
84 Plaintiff’s Exhibit 58, “11.29.22 Vedantham.”
85 Plaintiff’s Exhibit 58, “11.29.22 Sanfilippo.”
86 Plaintiff’s Exhibit 58, “12.21.22 Bostick.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 28 of 52

29
tissue that was present around the front of Mr. Magee’s knee, and he also found the medial
meniscal tear that was shown on the MRI and was able to repair the tear.87
76. 	On February 6, 2023, Magee met with Dr. Bostick for his first post-surgery follow up. Mr.
Magee reported his pain was much improved compared to pre-op and his first surgery. Mr.
Magee also reported the cold therapy machine Dr. Bostick prescribed was helping with
pain and swelling. Dr. Bostick referred Magee to physical therapy with a follow up visit
in four weeks.88
77. 	Between February 27 and March 2, 2023, Magee underwent three physical therapy sessions
at Care Physical Therapy. Mr. Magee’s assessment showed knee instability, painful knee
range of motion, swelling, gait abnormality with decreased stance time on his right leg, and
decreased walking tolerance.89
78. 	On March 6, 2023, Mr. Magee returned to Dr. Bostick for another follow up. Mr. Magee
reported that physical therapy was making his pain worse and described it as aggravating
his blood clot. Mr. Magee also reported that he was now experiencing pain with any
pressure on his calf. In addition, he had occasional popping or clicking in his knee and was
still experiencing an increase in swelling with activities. Dr. Bostick ordered that physical
therapy be put on hold for the time being. He also advised Mr. Magee to take aspirin as a
precaution because Mr. Magee was not on any blood thinners at that time.90
79. 	On March 13, 2023, Magee presented for an independent medical examination at Florida
Marine’s request to see hematologist, Dr. Steven Fein. 	Dr. Fein confirmed Magee has
87 Trial Testimony of Dr. Robert Bostick, III; Plaintiff’s Exhibit 58, “1.27.23 Surgery.”
88 Plaintiff’s Exhibit 58, “2.6.23 Bostick.”
89 Plaintiff’s Exhibit 58, “2.27.2023 CARE;” Plaintiff’s Exhibit 58, “2.28.2023 CARE;” Plaintiff’s Exhibit 58,
“3.2.2023 CARE.”
90 Trial Testimony of Dr. Robert Bostick, III; Plaintiff’s Exhibit 58, “3.6.23 Bostick.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 29 of 52

30
“presumed” post-thrombotic syndrome based on his review of Magee’s medical records.
Dr. Fein also opined that Magee likely had an underlying clotting tendency. He opinion
also states, “There is no way to determine whether the injury and surgery ‘caused’ the
clotting. While it’s a common practice to assume that this clot was ‘provoked,’ it’s not
confirmable.”91
80. 	On March 27, 2023, Mr. Magee met with psychiatrist, Dr. John Macgregor. Based on his
evaluation of Mr. Magee, Dr. Macgregor noted that Magee had developed post-traumatic
stress disorder (PTSD), major depressive disorder, and somatic symptom disorder with
predominant pain, all of which he found were the result of the March 6, 2022 work incident.
Dr. Macgregor recommended psychotherapy and psychotropic medications to help Magee
with these conditions.92
81. 	On April 17, 2023, Magee met with Dr. Bostick for another post-up visit. Magee presented
with sharp stabbing pain in the knee when he walked and was still limping. Magee also
reported a sense of instability with standing and walking. Despite these complaints, Mr.
Magee also reported that his pain was vastly better compared to preoperatively, and Dr.
Bostick noted that Mr. Magee seemed optimistic about his recovery. Mr. Magee informed
Dr. Bostick of an upcoming appointment with his vascular specialist. Dr. Bostick
recommended that Magee get cleared by his vascular specialist before starting further
physical therapy.93
82. 	Between May 15, 2023, and June 18, 2024, Mr. Magee underwent 24 sessions of
psychotherapy with Dr. John Macgregor. Magee was prescribed 150 mgs of Trazadone for
91 Plaintiff’s Exhibit 58, “3.13.23 Fein.”
92 Plaintiff’s Exhibit 58, “3.27.23 Macgregor.”
93 Plaintiff’s Exhibit 58, “4.17.23 Bostick.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 30 of 52

31
sleep. Macgregor explained to Magee that his dosage would gradually increase until he
achieved 	six 	to 	eight 	hours 	of 	continuous, 	restful 	sleep. 	Magee 	was 	prescribed
antidepressant/anxiolytic Escitalopram at 10 mgs twice a day. Magee was also prescribed
Hydroxyzine 25mgs for anxiety or panic.94
83. 	On July 13 and 14, 2023, Magee was again evaluated by hematologist, Dr. Sanfilippo, and
radiologist, Dr. Vedantham. Dr. Vedantham noted Mr. Magee’s right leg symptoms were
compatible with post-thrombotic syndrome. Mr. Magee reported that his right thigh pain
has improved since his recent knee surgery but that he is experiencing persistent pain in
the right calf. Dr. Vedantham recommended that Magee begin wearing a prescription
pressure stocking, discontinue Diosmin, and start taking Trental to help with blood flow.95
Dr. Sanfilippo noted that Magee was continuing the deal with symptoms of from post-
thrombotic syndrome. In addition, Dr. Sanfilippo responded to Florida Marine IME
hematologist Dr. Fein’s opinions that “there is no way to determine whether the injury and
surgery ‘caused’ the clot.” Dr. Sanfilippo confirmed based on her medical assessment and
expertise, she “would directly associate Mr. Magee’s right lower extremity deep vein
thrombosis complicated by pulmonary embolism . . . to his right knee surgery and thus
work injury.” Further, Dr. Sanfilippo found there “was no evidence” Magee’s thrombotic
events were chronic at the time of presentation.96 Dr. Sanfilippo testified regarding the
basis of these opinions at trial, and the Court found her opinions to be credible.97
94 Plaintiff’s Exhibit 58, “3.15.23-8.22.23 Macgregor Sessions;” Plaintiff’s Exhibit 58, “9.21.2023-6.18.24 Macgregor
Therapy.”
95 Plaintiff’s Exhibit 58, “7.13.23 Vedantham.”
96 Plaintiff’s Exhibit 58, “7.14.23 Sanfilippo.”
97 Trial Testimony of Dr. Kristen Sanfilippo.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 31 of 52

32
84. 	On July 24, 2023, Magee visited with Dr. Bostick showing some improvement. Dr. Bostick
noted that Magee still had medial sided patellofemoral pain and occasional giving out of
his knee, especially when walking on inclined surfaces or uneven ground. Dr. Bostick
prescribed Magee with topical anti-inflammatory gel and confirmed Magee’s clearance to
obtain balance and gait training through physical therapy.98
85. 	On September 20, 2023, Mr. Magee returned for a follow-up visit with Dr. Bostick where
it was noted Mr. Magee had marginal improvement with swelling but persistent pain since
his visit. Mr. Magee was also reporting episodic pain that shoots up his proximal leg to his
patellar region, and intermittent pain and swelling in his knee and leg. It was also noted
that Mr. Magee was unable to do daily tasks such as lifting and carrying his son and could
not stand or walk for significant distances without his leg swelling and having to take a
break. At this point, it was Dr. Bostick’s impression that many of Mr. Magee’s residual
symptoms were related to the post-thrombotic syndrome and not some mechanical issue
with the knee. Dr. Bostick did note that there may be a need for future injection treatments
to manage Mr. Magee’s knee pain, but Dr. Bostick found that Mr. Magee was otherwise at
maximum medical improvement (MMI) for his right knee condition. Dr. Bostick reviewed
job descriptions for various vessel jobs and reviewed work requirements regarding
shipboard functional requirements. Based on his review of these job requirements, his
opinion was that Mr. Magee would not be able to return to work, long term, with the
requirements for marine-based work activity. He did also opine, however, that Mr. Magee
should be able to tolerate sedentary or even light-based work that does not involve
prolonged standing or walking without frequent breaks. He further noted that Mr. Magee
98 Plaintiff’s Exhibit 58, “7.24.23 Bostick.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 32 of 52

33
should refrain from repetitive bending and stooping activities, and he placed Mr. Magee’s
lifting restriction at 20 to 25 pounds.99 At trial, Dr. Bostick explained that he was issuing
these work restrictions from an orthopedics perspective and that Mr. Magee’s post-
thrombotic syndrome specialists could issue more restrictive conditions due to the
thrombosis.100
86. 	Mr. Magee followed up with Dr. Bostick every six to eight weeks between November 14,
2023 and April 30, 2024. Mr. Magee was still experiencing pain and swelling throughout
this period. In January 2024, Mr. Magee received a viscosupplementation injection and a
knee brace. In February 2024, Mr. Magee reported that the viscosupplementation injection
did provide some relief, but the relief only lasted a few weeks. Mr. Magee was not able to
tolerate the knee brace due to his thrombotic issues. In April 2024, Mr. Magee was again
complaining of intermittent flare-ups and recurrent swelling. Magee noted that he could
not stand or walk more than 30 minutes after which point he had to rest due to increased
pain and swelling. Magee noted that Celebrex helped some and was also interested in
receiving another injection of the right knee. Dr. Bostick’s examination revealed swelling,
good range of motion, slight popping from the retropatellar region and patellofemoral
region with range of motion. Based on this, Dr. Bostick decided to inject Magee’s knee
with Celestone/lidocaine.101
87. 	On May 24, 2024, Mr. Magee had an appointment with his hematologist, Dr. Sanfilippo,
for continued treatment of his post-thrombotic syndrome. Dr. Sanfilippo noted Mr. Magee’s
chronic pain and mobility issues. She recommended the following: continue compression
99 Plaintiff’s Exhibit 58, “9.20.23 Bostick.”
100 Trial Testimony of Dr. Robert Bostick, III.
101 Plaintiff’s Exhibit 58, “11.14.23 Bostick;” Plaintiff’s Exhibit 58, “1.4.24 Bostick;” Plaintiff’s Exhibit 58, “2.29.24
Bostick;” Plaintiff’s Exhibit 58, “4.30.24.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 33 of 52

34
during waking hours; elevation of right lower extremity throughout the day for at least 20
to 30 minute consecutive intervals, 3 to 4 times a day, to relieve some of the swelling;
refrain from bending, squatting, or kneeling activities, refrain from long distance
ambulation without breaks (e.g., do not walk longer than 10 minutes without opportunity
to stop and elevate); and continue long-term follow up with interventional radiology.102
88. 	On July 23, 2024, Mr. Magee returned for a follow-up appointment with Dr. Bostick. Mr.
Magee reported three to four weeks of good relief following the Celestone/lidocaine
injection. Mr. Magee was still having difficulty with prolonged standing and walking on
firm surfaces. He was wearing compression socks for the continued swelling in his leg. Dr.
Bostick testified that he wanted to minimize ongoing cortisone injections to prevent
cartilage deterioration, so he and Mr. Magee discussed alternative treatment options like
future viscosupplementation injections or platelet-rich plasma injections.103
89. 	Dr. Susan Kahn, who was tendered as an expert in venous thrombosis and post-thrombotic
syndrome, testified at trial regarding Mr. Magee’s injuries, diagnoses, and treatment. Dr.
Kahn opined that all of Mr. Magee’s medical records since the time that he was diagnosed
with the DVT and pulmonary embolism in March/April 2022 point to the fact that he has
remained with symptoms and sequelae that are reflective of post-thrombotic syndrome.
She further opined that Mr. Magee’s DVT was surgically provoked; that Mr. Magee’s
pulmonary embolism was a result of the DVT; and that Mr. Magee has severe post-
thrombotic syndrome.104 Dr. Kahn further testified that she does not believe Mr. Magee is
capable of satisfying the Coast Guard functional requirements for marine-based work.
102 Plaintiff’s Exhibit 58, “5.24.24 Sanfillipo.”
103 Trial Testimony of Dr. Robert Bostick, III.
104 Trial Testimony of Dr. Susan Kahn.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 34 of 52

35
Additionally, Dr. Kahn described the difficulties Mr. Magee had been experiencing while
driving, which were making his PTS symptoms worse. She also noted that long-haul travel
can increase a person’s risk of developing another DVT. As a result, she advised that he
should refrain from routinely commuting for long periods (around 30-60 minutes) to avoid
aggravating his PTS symptoms and decrease his risk of developing another DVT.
90. 	Based on all of the documentary evidence and the testimony presented at trial, the Court
finds that Mr. Magee’s March 6, 2022 work incident caused all of his injuries and
necessitated all of his subsequent treatment. It is undisputed that the first arthroscopic
procedure was necessitated by the work incident. Dr. Sanfilippo and Dr. Kahn both credibly
testified that Mr. Magee’s deep vein thrombosis and subsequent pulmonary embolism were
surgically provoked by the initial arthroscopic procedure and that Mr. Magee’s post-
thrombotic syndrome is a chronic, long-term complication of the surgically provoked DVT.
In addition, the Court credits the testimony of Dr. Bostick, who opined that it is more
probable than not that the meniscal tear shown on the October 2022 MRI is the same as the
one shown on the March 2022 MRI and, thus, that the meniscal tear is related to the March
6, 2022 work incident. The Court likewise finds that through the trial testimony of Dr.
Macgregor, Mr. Magee established it is more probable than not that he suffers from PTSD,
major depressive disorder, and somatic symptom disorder with predominant pain as a result
of the March 6, 2022 work incident.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 35 of 52

36
II. LIABILITY
JONES ACT NEGLIGENCE
91. 	Under the Jones Act, a seaman’s employer is liable for damages if the employer’s
negligence caused the seaman’s injury.105 An employer under the Jones Act has a duty to
act with reasonable care under the circumstances.106 An employer breaches that duty, and
is thereby negligent, if it fails to act with reasonable care, i.e., fails to do what a reasonable
and prudent employer would have done under the circumstances of the situation.107 A
plaintiff seeking to recover for Jones Act negligence must also prove causation, but the
standard of proof is not a demanding one.108 Indeed, if the employer’s negligence “played
any part, even the slightest, in producing the seaman’s injury,” then the employer is liable
under the Jones Act.109
92. 	A Jones Act employer has an absolute and non-delegable duty to provide its seaman
employees a reasonably safe place to work.110 This duty to provide seamen employees a
reasonably safe place to work includes a duty to provide a reasonably safe means of ingress
and egress from the Vessel.111 It also includes a duty to inspect third-party property for
hazards and to take precautions to protect employees from possible defects.112 The
employer must have notice and the opportunity to correct an unsafe condition before
105 Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997).
106 Id. at 338 (5th Cir. 1997) (explaining that employers and employees under the Jones Act are each held to the same
standard of care, described as “ordinary prudence under the circumstances,” which has been used interchangeably
with “due care under the circumstances” and “reasonable care under the circumstances”).
107 Id.
108 Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 205 (5th Cir. 2019) (quoting Johnson v. Cenac Towing, Inc.,
544 F.3d 296, 302 (5th Cir. 2008)) (“The standard of causation in Jones Act cases is not demanding.”).
109 Gowdy, 925 F.3d at 205; Brister v. A.W.I., Inc., 946 F.2d 350, 354–55 (citing Chisholm v. Sabine Towing & Transp.
Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982)) (“[T]he Jones Act contains a liberal causation requirement. If the defendant’s
negligence played any part, however small, in producing the seaman’s injury, it results in liability.”).
110 Sanford v. Caswell, 200 F.2d 830, 832 (5th Cir. 1953).
111 Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 679 (5th Cir. 1969).
112 Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir. 1977).
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 36 of 52

37
liability will attach.113 “The standard of care is not ‘what the employer subjectively knew,
but rather what it objectively knew or should have known.’”114
93. 	The Court concludes Florida Marine failed to provide Mr. Magee with a safe place to work.
Mr. Magee was instructed to throw away trash during the stop at Mid America Fuels. The
only path from the Vessel to the dumpsters involved traversing the approximately 18-inch
gap between the fuel barge and the dock, then stepping onto one of the steps on the stairway
(each of which had a 9” run), with no access to a handrail, while it was raining on and off,
and the stairs were wet and slippery. Captain Spencer is seen on video standing at the edge
of the fuel barge where the hazardous conditions existed. Thus, he knew or should have
known of these unsafe conditions. The Court also finds, for the reasons stated below, that
Captain Spencer (and thus Florida Marine) had an opportunity to correct the unsafe
condition prior to the incident but failed to do so.
a. 	The video also shows Captain Spencer and Mr. Magee standing by each other for
about 10 seconds before Mr. Magee attempted to step across the gap and fell into
the river. It is undisputed that the two men had a conversation during this brief
period. What was said during that conversation, however, is in dispute.
b. 	According to Mr. Magee, when he approached the edge of the fuel barge, Captain
Spencer was standing there and asked Mr. Magee where he was crossing at because
Captain Spencer needed to cross to get cigarettes from the boat store.115
c. 	Captain Spencer testified that when Mr. Magee approached him, he was standing
there looking at the gap between the barge and the dock, and he told Mr. Magee the
113 Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989).
114 Id.
115 Trial Testimony of Nicholas Magee.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 37 of 52

38
gap looked pretty wide, to which Mr. Magee responded “yeah.” Captain Spencer
testified that he then told Mr. Magee that Mr. Magee and Mr. Rushing should get
the trash off the boat, bring it over to the edge of the fuel barge, and then hand it
across to each other to take it up to the dumpster instead of stepping across the gap.
According to Captain Spencer, Mr. Magee said “yeah” to this statement as well but
then he took the step across and that’s when he fell in.116
d. 	The Court does not find Captain Spencer’s testimony to be credible on this issue.
The record in this case is replete with examples of Captain Spencer’s lack of
knowledge regarding Florida Marine’s safety and risk-management policies. This
general lack of knowledge alone was enough for the Court to doubt that Captain
Spencer instructed Mr. Magee to do his task in a different, safer manner. The Court
finds it even more improbable that Captain Spencer instructed Mr. Magee to change
the method in which he was moving the trash over the gap given that Captain
Spencer specifically testified he was not sure if Florida Marine had any policies
about stepping over water and that he did not consider that gap to be “open
water.”117 And lastly, the Court notes the testimony of Bryceton Scott, who was off
watch when Mr. Magee was injured, but was woken up after the fact and was
required to unload the few remaining bags of trash from the Vessel while the Vessel
was still moored at Mid America Fuels. Mr. Scott testified that he was taking the
trash bags to the dumpster, with a bag in each hand, over the gap Mr. Magee had
just fallen through, and that he was stepping on to the same third step because he
116 Trial Testimony of Captain David Spencer.
117 Trial Testimony of Captain David Spencer.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 38 of 52

39
could not step down to the landing area or access the handrail.118 The Court finds
it highly implausible that Mr. Scott would have been permitted take the trash out
using the same method Mr. Magee had used if Captain Spencer had truly warned
Mr. Magee to complete the task a different way earlier that evening, given that Mr.
Magee’s purported disobedience had landed Mr. Magee in the Ohio River.
e. 	In sum, the Court credits Mr. Magee’s testimony that during the brief conversation
with Captain Spencer at the edge of the fuel barge, Captain Spencer was inquiring
about how Mr. Magee was getting across the gap because Captain Spencer was
about to go across to the boat store; Captain Spencer was not instructing Mr. Magee
on how to do the job more safely.
94. 	Because the Court found that there was no barge movement during the time period that Mr.
Magee was crossing from the fuel barge to the dock, Mr. Magee cannot prevail on his
theory of Jones Act negligence for failure to maintain an adequate lookout and to warn Mr.
Magee in advance of the TRISTATE’s passing because there is no causal connection
between Florida Marine’s alleged failures in this regard and Mr. Magee’s fall and
subsequent injuries.
95. 	Because the Court determined that it cannot find that it is more likely than not that any
impairments due to sleep deficiency contributed to Mr. Magee’s fall, Mr. Magee cannot
prevail on his theory of Jones Act negligence for overworking Mr. Magee because there is
no causal connection between Mr. Magee’s excessive work hours and Mr. Magee’s fall and
subsequent injuries.
118 Joint Exhibit 1, Deposition Testimony of Bryceton Scott.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 39 of 52

40
96. 	Similarly, Mr. Magee’s claims of negligence per se against Florida Marine based on
violations of federal safety statutes and regulations that have to do with tracking Mr.
Magee’s working hours cannot prevail because the Court determined that it cannot find
that it is more likely than not that any impairments due to sleep deficiency contributed to
Mr. Magee’s fall. Thus, Mr. Magee is unable to establish a causal connection between the
purported violations and his injuries as required to prevail on a negligence per se claim.119
97. 	The only negligence per se claim that remains is based on Captain Spencer’s alleged failure
to complete a Job Safety Analysis (“JSA”) before sending Mr. Magee to unload trash, in
violation of Florida Marine’s TSMS.
a. 	The Court need not decide whether the failure to adhere to a safety policy set forth
in a vessel’s TSMS constitutes a violation of 46 C.F.R. § 140.205 such that the
TSMS violation is essentially converted into a violation of a federal regulation for
purposes of asserting a negligence per se claim, because even if a negligence per
se claim can be based on a TSMS violation, Mr. Magee has failed to prove that
Captain Spencer violated Florida Marine’s TSMS when he failed to complete a JSA
prior to sending Mr. Magee and Mr. Rushing to take out the trash.
b. 	Mr. Magee relies on the testimony of Florida Marine’s Corporate Representative,
Chad Hidalgo, to support his claim, but Mr. Hidalgo merely testified that if a JSA
had been completed, it could have prevented the incident.120 Importantly, though,
trash removal is not one of the listed jobs for which a JSA is required under Florida
Marine’s TSMS.121 Thus, regardless of whether performing and completing a JSA
119 See Smith v. Trans-World Drilling Co., 772 F.2d 157, 160–61 (5th Cir. 1985).
120 Joint Exhibit 1, Deposition Testimony of Chad Hidalgo.
121 Defense Exhibit 90, “SMS-05-05.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 40 of 52

41
for the trash removal task could have prevented Mr. Magee’s injuries if it had been
performed prior to sending Mr. Magee out to do the job, the TSMS did not require
Captain Spencer to perform the JSA for this specific task prior to sending Mr.
Magee and Mr. Rushing out to begin the task.
c. 	Mr. Magee also tried to point to the TSMS’s more general requirement that JSAs
are required for “jobs with a higher potential for injury.”122 Mr. Magee relies on Mr.
Hidalgo’s testimony identifying the hazards that were present at Mid America Fuels
on the night of the incident in an effort to support his claim that the trash removal
task was a job with a higher potential for injury and thus that a JSA should have
been performed.123 But Mr. Magee has not shown that those hazards were known
to Captain Spencer before he sent Mr. Magee and Mr. Rushing out to remove the
trash. And this theory—that Captain Spencer should have completed a JSA because
of the hazards that were present—contradicts the above theory that a JSA should
have been completed to discover the hazards that were present before sending Mr.
Magee and Mr. Rushing out to remove the trash.
d. 	In summary, trash removal generally is not a job for which a JSA is required under
Florida Marine’s TSMS, and the hazards that would have prompted the need to
perform a JSA were not known to Captain Spencer at the time he sent Mr. Magee
and Mr. Rushing out to remove the trash from the Vessel at Mid America Fuels.
Thus, Captain Spencer did not violate Florida Marine’s TSMS by failing to perform
a JSA prior to sending Mr. Magee out to perform the trash removal task on the night
122 Defense Exhibit 90, “SMS-05-05.”
123 Joint Exhibit 1, Deposition Testimony of Chad Hidalgo.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 41 of 52

42
of the incident. Accordingly, Mr. Magee’s negligence per se claim based on this
theory also fails.
UNSEAWORTHINESS
98. 	Given the Court’s finding that Florida Marine’s failure to provide a safe place to work
constituted negligence under the Jones Act, the Court need not address the question of
unseaworthiness.124
APPORTIONMENT OF FAULT
99. 	Under the Jones Act and the law of unseaworthiness, a seaman’s contributory negligence
diminishes his recovery in proportion to his fault.125 “To establish that a seaman is
contributorily negligent, an employer must prove negligence and causation.”126 Like an
employer, “[a] seaman is negligent in he fails to act with ordinary prudence under the
circumstances.”127 “The circumstances of a seaman’s employment include not only his
reliance on his employer to provide a safe work environment but also his own experience,
training, or education. The reasonable person standard, therefore, [in] a Jones Act
negligence action becomes one of the reasonable seaman in like circumstances.”128
100. The Court finds Mr. Magee was contributorily negligent. In light of his extensive
experience working aboard boats as a deckhand, Mr. Magee knew or should have known
that stepping over open water without using three points of contact could increase the risk
of injury. Mr. Magee also knew or should have known that Florida Marine had a “Stop
124 See, e.g., Luwisch v. Am. Marine Corp., 956 F.3d 320, 327 (5th Cir. 2020) (“Although Jones Act negligence and
unseaworthiness under general maritime law are two distinct causes of action, they largely provide for the same
remedies. Consequently, when we rule for a plaintiff on the issue of unseaworthiness, we ordinarily need not consider
the question of Jones Act negligence.”) (citation modified).
125 Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008); Luwisch, 956 F.3d at 327.
126 Johnson, 544 F.3d at 302.
127 Id.
128 Id.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 42 of 52

43
Work Obligation Policy” through which Mr. Magee could have immediately stopped
removing trash and not step over the gap until a safer method could be determined. The
Court concludes that Mr. Magee is 35% at fault for his injuries.
FAILURE TO PAY CURE
101. Mr. Magee claims that between October 2022 and March 2023 Florida Marine arbitrarily
refused to approve cure in this case with respect to Mr. Magee’s psychiatric care. Mr.
Magee seeks compensatory and punitive damages as a result.
102. When a seaman becomes ill or injured while in the service of his ship, the shipowner must
pay him cure, whether or not the shipowner was at fault or the ship unseaworthy.129
Shipowners are entitled to investigate the propriety of a seaman’s cure claim before making
any payments to the seaman.130 If, after investigating, the shipowner unreasonably rejects
the claim, when in fact the seaman is due cure, the owner becomes liable not only for the
cure payments, but also for compensatory damages.131 Where the vessel owner has been
unreasonable in refusing to pay and has also been “callous and recalcitrant, arbitrary and
capricious, or willful, callous, and persistent,” then it may also be liable for punitive
damages and attorney’s fees.132
103. Dr. Bostick issued a referral order for Mr. Magee to see a psychiatrist on October 18,
2022.133 This information was provided to Florida Marine shortly thereafter. The record
reveals Florida Marine was investigating the propriety of Mr. Magee’s request and counsel
was exchanging correspondence every day or so up until about October 28, 2022. At that
129 Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir. 1987).
130 See Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728 (5th Cir. 2013).
131 Morales, 829 F.2d at 1355.
132 Id.
133 Plaintiff’s Exhibit 58, “10.18.22 Bostick.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 43 of 52

44
point, based on the record before the Court, it does not appear a final decision had been
made, but that Florida Marine was still investigating. The next (and last) correspondence
in the record is dated March 20, 2023. It appears Florida Marine was requesting additional
support for the psychiatric treatment recommended by Dr. Bostick.134 The Court also has
before it the March 27, 2023 psychiatric treatment evaluation from Dr. Macgregor, 135 who
is Mr. Magee’s treating psychiatrist, and the April 12, 2023 independent psychiatric
evaluation by Dr. John Thompson,136 requested on behalf of Florida Marine. Both
evaluations reveal Mr. Magee was indeed in need of psychiatric medication and treatment,
and both doctors opined Mr. Magee’s psychiatric needs were related to the March 6, 2022
work incident.
104. At trial, Janice Tyson, Florida Marine’s Claims Manager, testified that Florida Marine
agreed to pay cure for the psychiatric treatment after receiving the evaluations from both
providers. Mr. Magee had his first psychiatric treatment session with Dr. Macgregor on
May 15, 2023.
105. Based on the documentary evidence in the record and testimony presented at trial related
to this claim, the Court cannot find by a preponderance of the evidence that Florida
Marine’s actions were unreasonable, much less “callous and recalcitrant, arbitrary and
capricious, or willful, callous, and persistent.” Though it took five months before Mr.
Magee was evaluated by Dr. Macgregor after being referred by Dr. Bostick, there is very
little evidence in the record showing what was transpiring during that time period. From
what the Court can see, Florida Marine was hesitant to approve the cure request based on
134 Plaintiff’s Exhibit 42, “Failure to Provide Cure Correspondence.”
135 Plaintiff’s Exhibit 58, “3.27.23 Macgregor.”
136 Plaintiff’s Exhibit 58, “4.12.23 Macgregor.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 44 of 52

45
a lack of medical documentation supporting a need for it or its relatedness to the March 6,
2022 work incident. Though Florida Marine did not immediately provide payment
information like Mr. Magee’s counsel requested, there is no express refusal by Florida
Marine in the record. Rather, it appears Florida Marine was conducting an investigation
and then eventually approved the request for cure. The Court does not find compensatory
or punitive damages to be owed on this record.
III. DAMAGES
106. Under the Jones Act, an injured seaman is entitled to monetary recovery for past, present,
and future loss of earning capacity and wages, medical expenses, and pain and suffering
caused by his employer’s negligence.137
LOST EARNINGS
107. Mr. Magee retained Nancy Favaloro as his vocational rehabilitation expert. She provided
two main opinions in this case.
108. First, with respect to current and future job options for Mr. Magee, she testified that, given
Mr. Magee’s vocational profile, his work restriction to sedentary or light-based work, and
the restriction on routinely commuting more than 30 minutes, it is her opinion that
compatible job alternatives for Mr. Magee include roles such as a remote call center
representative or an at-home customer service representative. Both jobs have a median
hourly wage of $14.30. Ms. Favaloro explained that because Mr. Magee lives in a rural
area in Louisiana, she was unable to find any sedentary or light-based jobs that were less
than a 30 to 40 minute commute from his home. She was able to find these two remote jobs
that provide virtual on-the-job training, however.138
137 Nichols v. Weeks Marine, Inc., 513 F. Supp. 2d 627, 637 (E.D. La. 2007).
138 Trial Testimony of Nancy Favaloro.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 45 of 52

46
109. Second, with respect to Mr. Magee’s vocational outlook prior to the accident, Ms. Favaloro
testified that, given Mr. Magee’s background, the licenses he already possessed, and his
father and grandfather’s work as captains, it is her opinion that it is reasonable and likely
the Mr. Magee would have become a captain. She testified that records show he would
have been able to submit for his pilot’s license in August 2022, which, according to Florida
Marine records, would have had him earning $694/day or $166,560/year given 240
workdays a year in this industry. And after one year, he would have been able to start work
as a relief captain with earnings of $709/day or $170,160/year given 240 workdays a year.
And then eventually when he became a captain, according to Florida Marine records, he
would have been earning $733/day or $175,440/year given 240 workdays.139
110. Florida Marine retained Stanford McNabb, who provided expert testimony from a
vocational rehabilitation perspective and as a life care planner.
111. Mr. McNabb presented two alternative scenarios based on what the trier of fact could find
in this case. Scenario One applies if the trier of fact finds that the work incident resulted in
sedentary to light duty work restrictions. Scenario Two applies if the trier of fact finds no
work restrictions. As has already been determined, the Court credits the opinions of Mr.
Magee’s current treating physicians who associate his present symptoms with the work
incident and who opine that Mr. Magee is restricted to sedentary or light duty work. Thus,
the Court considers only Scenario One. The testimony at trial revealed that the jobs Mr.
McNabb identified as alternative occupations for Mr. Magee are not realistic, as they would
all require Mr. Magee to commute more than 30 to 60 minutes a day, some requiring over
five 	hours 	of 	commuting 	time.140. 	Moreover, 	based 	upon 	the 	Court’s 	objective
139 Trial Testimony of Nancy Favaloro; Plaintiff’s Exhibit 12, “Crew Pay Scale Wheelhouse.”
140 Trial Testimony of Stanford McNabb.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 46 of 52

47
consideration of all evidence and testimony in this case, the Court finds that Mr. McNabb’s
opinions do not present a reliable application of his vocational rehabilitation expertise to
the facts of this case. Rather, the Court finds the vocational analysis of Ms. Favaloro to be
more plausible and realistic, and, therefore, a more reliable application of vocational
rehabilitation expertise to the facts of this case. That being the case, the Court credits the
testimony of Ms. Favaloro, and the Court shall not consider Mr. McNabb’s opinions for
purposes of determining lost earnings.
112. Mr. Magee retained Ralph Litolff, II as his expert economist. Mr. Litolff calculated Mr.
Magee’s past and future lost wages and past and future lost fringe benefits as a result of the
March 6, 2022 accident, relying on the information and opinions set forth in Ms. Favaloro’s
report and other documents related to that report.
113. The Court finds Mr. Litolff has properly calculated each of the individual damages
categories (past lost wages, future lost wages, past lost fringe benefits, and future lost fringe
benefits) as required under the law.
114. Mr. Litolff presents three alternative scenarios for determining past and future lost wages
based on Ms. Favaloro’s opinions about Mr. Magee’s potential career progression from
deckmate, to pilot, to relief captain, to captain.
a. 	[Scenario 1: Deckmate to Pilot] – Calculations under this scenario assume Mr.
Magee would be a deckmate from March 2022 through December 2022, and then
a pilot from January 2023 through his work-life expectancy.
b. 	[Scenario 2: Deckmate to Pilot to Relief Captain] – Calculations under this scenario
assume everything in Scenario 1, except that Mr. Magee would become a relief
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 47 of 52

48
captain in January 2024 and remain in that position through his work-life
expectancy.
c. 	[Scenario 3: Deckmate to Pilot to Relief Captain to Captain] – Calculations under
this scenario assume everything in Scenario 2, except that Mr. Magee would
become a captain in January 2029 and remain in that position through his work-life
expectancy.
115. The relevant testimony and documentary evidence in this case all indicate Mr. Magee was
a hard worker, well-liked and respected by his employer Florida Marine, and was diligently
working towards his goal of obtaining a position in the wheelhouse prior to this incident.
Mr. Magee already possessed his 100 Ton license and his 200 Ton Pilot’s license. Because
Mr. Magee was under 30 years old at the time of the accident, Dr. Favaloro explained that
his family history is also a relevant consideration in determining what his vocational
outlook would have been had the accident not occurred. Mr. Magee’s father and grandfather
were both captains in the marine industry. At trial, Mr. Timmy Callais, Florida Marine’s
Vice President of Vessel Operations and Dry Cargo Operations, testified that Mr. Magee
would have been in the wheelhouse by October 2022 had the accident not occurred. Mr.
Callais also testified in his deposition that Mr. Magee was the type of person Florida Marine
wanted in the wheelhouse. Considering the weight of this evidence, and the lack of any
contradictory evidence, the Court finds, more likely than not, Mr. Magee would have
become a captain if he had not been permanently injured as a result of the March 6, 2022
incident. The Court further finds, more likely than not, Mr. Magee would have become a
captain within the conservative timeline set forth in Scenario 3 of Mr. Litolff’s report.
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 48 of 52

49
116. The Court therefore finds that the calculations for past and future lost wages under
Scenario 3 of Mr. Litolff’s report apply here, and that, as a result, Mr. Magee is entitled to
$261,261.00 in past lost wages and $2,731,813.00 in future lost wages.141
117. The Court further finds Mr. Magee is entitled to lost fringe benefits in the form of lost
medical insurance benefits and lost future maintenance benefits. Mr. Magee is entitled to
$21,323.00 in past lost medical insurance benefits and $225,693.00 in lost future
maintenance benefits.142
FUTURE MEDICAL EXPENSES
118. Mr. Magee retained Dr. Aaron Wolfson to conduct a life care plan assessment to determine
Mr. Magee’s future medical care needs related to the injuries he sustained as a result of the
March 6, 2022 work incident. Dr. Wolfson consulted with Drs. Bostick, Kahn, and
Macgregor to gather their medical recommendations regarding the care Mr. Magee will
need for the remainder of his life expectancy. During Dr. Wolfson’s testimony, the cost
tables contained in his report were displayed, and he described the recommendations from
each of the doctors. The Court finds the doctors to be credible and that their recommended
medical treatment is more likely than not necessary and related to the March 6, 2022 work
incident.
119. Mr. Litolff calculated the present value (as of the trial date) of the total future medical costs
set forth in Dr. Wolfson’s report, which had a low point and high point. The present value
of the low point is $61,534.00, and the present value of the high point is $167,426.00, with
the midpoint being $110,794.00.
141 Plaintiff’s Exhibit 61, “Ralph Litolff Spreadsheet.”
142 Plaintiff’s Exhibit 61, “Ralph Litolff Spreadsheet.”
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 49 of 52

50
120. Accordingly, the Court finds Mr. Magee is entitled to $110,794.00 in future medical
expenses.
PAIN AND SUFFERING
121. The “amount awarded for pain and suffering depends to a great extent on the trial court's
observation of the plaintiff and its subjective determination of the amount needed to
achieve full compensation.”143
122. Here, the Court finds Mr. Magee has experienced significant pain and suffering as a result
of the March 6, 2022 work incident. The medical records, Mr. Magee’s testimony, and the
testimony of his doctors all confirm the physical pain Mr. Magee has experienced and will
experience for the remainder of his life. Mr. Magee experienced physical pain when he
injured his knee. He experienced physical pain from the two surgeries to repair his knee.
He experienced physical pain from his deep vein thrombosis and resulting post-thrombotic
syndrome. He experienced physical pain from his pulmonary embolism. He will continue
to experience physical pain from his mechanically damaged knee for the remainder of his
life, and he will continue to experience physical pain from his post-thrombotic syndrome
for the remainder of his life. In addition to this ongoing physical pain, the medical records,
Mr. Magee’s testimony, the testimony of his wife, and the testimony of his psychiatrist
confirm the accident has had a significant impact on him emotionally. Mr. Magee is a hard-
working person. He has a wife and a son with special needs. Mr. Magee’s inability to
provide for his family following the accident has had significant impact on him
emotionally. Mr. Magee lives in fear of developing another pulmonary embolism given its
life-threatening nature. The physical limits he now has because of the accident cause him
143 Luwisch v. Am. Marine Corp., 956 F.3d 320, 331 (5th Cir. 2020).
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 50 of 52

51
embarrassment. He has also experienced a loss of enjoyment of life. He can no longer
engage in the activities that used to bring him joy, like hunt, or help his grandpa around the
farm, or play outside with his young, high-energy son.
123. For these reasons, the Court finds Mr. Magee is entitled to $750,000.00 for past pain and
suffering and $1,000,000.00 for future pain and suffering.144
PRE-JUDGMENT INTEREST
124. In admiralty, the Court has the discretion to award pre-judgment interest. There is a strong
presumption in favor of awarding pre-judgment interest, and it will usually be denied only
in cases in which the plaintiff exercised undue delay in bringing his action.145 When a Jones
Act case is tried to a jury, the Court may not award pre-judgment interest, but when a Jones
Act case is tried to the Court, it may award pre-judgment interest.146 Pre-judgment interest
may be awarded only on damages that have actually accrued as of the date of judgment.147
It is within the discretion of the Court to select an equitable rate of pre-judgment interest.148
The Court finds that an award of pre-judgment interest is warranted on Plaintiff’s past
wages, past fringe benefits loss, and past pain and suffering.
IV. SUMMARY
On the basis of the foregoing findings of fact and conclusions of law, the Court finds that
the plaintiff, Nicholas Reed Magee, has sustained damages due to the negligence of Florida
Marine. Accordingly, Mr. Magee is entitled to recover from Florida Marine the following damages:
Past Wage Loss 	$261,261.00
144 See Rosenthal v. United States, Civil Action No. 3:03-CV-0822-N, 2005 WL 926964 (N.D. Tex. Apr. 20, 2005).
145 United States v. Ocean Bulk Ships, Inc., 248 F.3d 331, 344 (5th Cir. 2001).
146 McPhillamy v. Brown & Root, 810 F.2d 529, 532 (5th Cir. 1987); Bush v. Diamond Offshore Co., 46 F. Supp. 2d
515, 523 (E.D. La. 1999).
147 Martin v. Walk, Haydel & Assocs., Inc., 794 F.2d 209, 212 (5th Cir. 1986).
148 Hansen v. Continental Ins. Co., 940 F.2d 971, 984 (5th Cir. 1991).
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 51 of 52

52
Future Wage Loss 	$2,731,813.00
Past Fringe Benefit Loss 	$21,323.00
Future Fringe Benefit Loss 	$225,693.00
Future Medical Expenses 	$110,794.00
Past Pain and Suffering 	$750,000.00
Future Pain and Suffering 	$1,000,000.00
Total Damages 	$5,100,844.00
Mr. Magee’s Portion of Fault 	35%
Adjusting for Mr. Magee’s contributory negligence, Mr. Magee is entitled to a total award
of $3,315,574.60. Mr. Magee is entitled to pre-judgment interest on past damages ($671,179.60)
at the rate of 3% per annum from the date of judicial demand until satisfied. Further, Mr. Magee is
entitled to post-judgment interest on all remaining damages ($2,644,395.00) at the federal judicial
rate from the date of judgment until the date paid.
New Orleans Louisiana, this 31st day of March 2026.
__________________________________________
DARREL JAMES PAPILLION
UNITED STATES DISTRICT JUDGE
Case 2:22-cv-03835-DJP-MBN Document 255 Filed 03/31/26 Page 52 of 52