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Maritime Update: Use of DOL Work Life Tables for Damages Upheld in Jones Act Case

In an appeal decided by the U.S. Court of Appeals for the Fifth Circuit on September 4, 2015, the court determined the work life tables published by the U. S. Department of Labor, and not the retirement date for full Social Security benefits, should apply for calculation of loss of future wage earning capacity.

In the case of MARK BARTO v. SHORE CONSTRUCTION, L.L.C. and MCDERMOTT, INCORPORATED, one of the issues on appeal in this Jones Act case was the fact the district trial judge calculated Barto’s lost wages according to an above-average work-life expectancy. By way of background, the Fifth Circuit noted that “a damages award for future lost wages should generally be based upon a seaman’s work-life expectancy, meaning “the average number of years that a person of a certain age will both live and work.” They went on to note “such an average is not conclusive. It may be shown by evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.” However,  “absent such evidence, however, computations should be based on the statistical average.”

In this case, as is typical in many trials, both parties had their own expert economists provide to the court wage loss estimates based upon the work-life expectancies of the plaintiff.  The expert hired by plaintiff Barto  calculated future lost wages using two different retirement ages: 55.8 and 67. The age of 55.8 was selected based on a table of statistical work-life expectancies prepared by other economists. In contrast, the age of 67 was selected because it was Barto’s “full retirement age, as determined by the Social Security Administration.”

McDermott’s economic expert provided a different range of estimates based on a retirement age of 58.2, which was selected based on a work-life expectancy table published by the U.S. Department of Labor’s Bureau of Labor Statistics.

Barto’s economist did not provide any reason to believe that Barto would continue to work past his statistical work-life expectancy. The only relevant evidence Barto presented at trial was his testimony that he plans to work “[a]s long as I can retire. Whatever the retirement age is.” The Fifth Circuit reviewed this and found “this scant evidence was not enough to show that Barto “by virtue of his health or occupation or other factors, is likely to live and work a longer, or shorter, period than the average.”  Further, they found that even if the District Court Judge believed Barto wanted to work until age 67, “wanting to work until age 67 is not the only or even the most significant factor in determining whether someone actually will work until age 67.”  They pointed out that an employee “might have become disabled before [the Social Security retirement age] as a result of illness or some other misadventure.” or the employee “might have died before then.”

As a result, the appeals court determined Barto had presented no evidence that such events were particularly unlikely given his health or other factors. They concluded Barto did not successfully rebut the presumption that the average work-life expectancy should apply.  They reversed and rendered judgment for the lesser amount of future loss of earnings capacity using the retirement age of 58.2 based on the work life tables of the Department of Labor.

The outcome here tells us that the court must be presented with evidence that a particular person, by virtue of his or her health, occupation or other factors is likely to live and work a longer (or shorter) period than average before the court can consider a different work life expectancy than the one established by the work life tables for the statistical average.

If you have any questions, please feel free to contact Bill Schwartz at (504) 569-2900 or



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