Providing industry-leading expert witness services in the United States
Brookes Bell acquired 3D Marine USA in January of this year, here David Scruton, previous managing director of 3D Marine USA, Inc. talks about the personal injury work which is specific to the USA and forms a significant amount of work undertaken by the specialist maritime consultancy.
Personal injury is the legal term which describes an injury to the body, mind or emotions as opposed to an injury to property. In the US, maritime incidents and alleged injuries can be filed in either federal or state courts and any litigation is handled accordingly.
A large volume of my personal work is providing expert witness opinions and giving advice in personal injury cases. We are typically instructed by defence maritime attorneys representing vessel owners / charterers interests. We are frequently contacted by plaintiff’s attorneys too, but after being told the circumstances of an alleged incident and injuries our opinions often cannot support the case. Hence, we are often not retained on behalf of plaintiffs as regularly as we are for defence interests.
The vessels involved could be an ocean-going cargo vessel, tanker, offshore, support vessel, tug and push boats, barges, recreational vessels including personal watercraft and also offshore platform owners’ interests.
The alleged injuries could be anything from the most common slips, trips and falls, broken limbs, pier and dock accidents or injuries from repetitive work. However, in the large majority of personal injury cases, plaintiffs subsequently allege that their back or neck was injured in addition to whatever they originally alleged was injured.
I have 50 years of experience in the maritime industry with approximately 16 years of practical seagoing experience, up to and including as Captain and I’ve sailed on a wide range of vessel types. That wide breadth of seafaring and hands-on experience is precisely what makes my insight and opinions valuable in many cases. I have the necessary expertise and knowledge and can explain what is normal and customary and what are industry standards in those cases.
After leaving the sea I originally started out as a marine surveyor, I didn’t intend to go in this direction at all, but early on I was asked to testify on a vessel interests behalf and the consultancy work just grew from there. In my experience, European Master Mariners and Captains are particularly well regarded in the US, our qualifications are respected, and our expertise is recognized and sought after.
Maritime survey work can be quite challenging, you get a call in the middle of the night regarding a tanker contamination incident, you need to go to vessel, inspect, take samples, and assess the cargo damage – it is hands on work. However, in reality I now do progressively less survey work on ships and more often I get a call from a lawyer, I’m sent a box of documents and evidence to read, and from that I must formulate my expert opinions, whether I do or don’t agree with the claimant. I will thoroughly review the file and convey my opinions including the good, the bad and the ugly, along with the strengths and weaknesses of the case. I focus on the facts, the plaintiff’s and witness actions, not the wider actions of the client.
My experience is that some experts appear to be advocates for their clients rather than testify what is customary in the industry.
Here, in the US, many cases settle long before they get to court, it goes to a deposition which is in front of the lawyers, sworn under oath, and from that in-depth examination a settlement may be reached.
The deposition can often be contentious lasting for many hours and some lawyers can get very aggressive, irate and ask the same question over and over again if they do not like the answer. I understand that in the UK it’s very different, all managed by an arbitration panel in much more controlled circumstances, going before a judge if that fails to reach a decision.
I’m afraid I feel many of the cases I work on are nefarious and often the claimant appears to be trying it on. Recently, we’ve seen some cases from people laid off as a result of COVID who think back and suddenly realize they’ve had an alleged injury and contact an attorney. All questionable.
Many of the claims are for slips, trips and falls, injuries as a result of a collision, or in the Gulf, because of the low tides we get a fair number of swing rope transfers and associated alleged injuries and personnel basket transfer alleged injuries as personnel move between support vessels and offshore installations.
Here in the US, the legal system makes it possible for personal injury cases to go forward, and in my opinion some doctors appear all too happy to support injuries, and the claimant generally gets some money even if the case settles before trial.
In many cases Brookes Bell is appointed for the ships defence, but we ensure the instructing attorneys are informed of our opinions so that they can choose to use our services or not.
One of the clear benefits of joining with Brookes Bell has been the additional expertise we can now draw on, if there’s an aspect of maritime operations we are not experienced in, we can now defer to our new colleagues – whose knowledge spans almost every scenario.
In the US I work closely with Captain Fazioli and also with Captain Dean, Captain Tulloch and Engineer MP Singh and we testify in both state and federal court cases.
In the UK I’ve been working closely with Principal Master Mariners, Nick Haslam and Alistair Roaf, Senior Master Mariner, Daniel Millet and Head of Nautical Adrian Scales. In recent cases I’ve been able to ask the team in the UK, to help source specific CAD drawings of a vessel and pipeline and there is a large pool of experience to be able to call on.
I have personally testified at deposition, trials and arbitration in approximately 175 cases, most involving alleged personal injuries. Many of those cases were resolved after the deposition stage, some can take weeks to settle, others have taken several years!
In theory, I will be retiring at the end of this year, but in practice I intend to keep doing some consultancy work as I find it too interesting to stop completely.