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3d DCA Watch -- Judge Shepherd Is Happy To Not Question Judge Learned Hand.

I pretty much think any judge named "Learned Hand" should get a wide berth and be entitled to do whatever the hail he wants.

I mean, the judge is literally named "Learned Hand."

Well, in today's bunker watch, we peer at the delicate dance between our very apodicticly-minded Judge Shepherd and the Hand of Learning:

In fairness to the parties, I note that the doctrine, first articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952), appears to have fragmented into several divergent versions. See Shaul Serban, Evolution of a Defense in Maritime Law: A Survey of the Primary Duty Rule, 18 U.S.F. Mar. L.J. 253, 282-283 (2006). Some courts in the Second Circuit?where Judge Hand sat for more than ten years?have questioned its continuing viability. See, e.g., Borges v. Seabulk Int?l, Inc., 456 F. Supp. 2d 387, 393 (D. Conn. 2006); Lombas v. Moran Towing & Transp. Co., 899 F. Supp. 1089, 1096 (S.D.N.Y. 1995); see also Dunbar v. DuBois? Sons Co., 275 F.2d 304, 306 (2d Cir. 1960). Happily, I need not question Judge Hand for purposes of this opinion.

Question -- then why go there?

Either take the primary duty doctrine straight on, or defer to it, but why note "several fragmented divergent versions," and then move on?

Actually, I think Judge Shepherd has a point on his dissent.  He dissented on a sailor's award of future medical care costs when, at the last minute, the plaintiff had his expert opine not just on future medical costs in Nicaragua, where the sailor lived most of his life(?), but also in the United States, which is dramatically more expensive:

As to the second issue, I find the trial court reversibly erred by permitting the plaintiff?s vocational rehabilitation expert, Pedro Roman, to amend, four days before trial, his life care plan for Cox to include future medical care costs. Roman estimated future medical care, if performed in Nicaragua, at approximately $5000 and $241,398.20, if provided in the United States. Royal Caribbean?s vocational rehabilitation expert earlier had estimated Cox?s future medical care only in Nicaragua, where Cox was born and has lived for almost all of his forty-nine years.

Hold on -- the same future medical care in Nicaragua would cost $5k, but in the US would be a staggering $241k?

Hmm, I wonder what the difference is between the two countries in how they administer health care to their citizens?  (Hint:  poorly funded but improving public health care system)

In any event, where does the sailor live?  Does he have the right to reside in the United States?  I would have challenged the US future medicals as speculative unless there was a basis to believe he could incur those expenses here.

Oh well, tell it to the (Learned) Hand.

Full post as published by South Florida Lawyers on February 23, 2011 (boomark / email).