Averaging Competing Expert Figures Is Not a Culver II Analysis: The Fifth Circuit Vacates a Future Wage-Loss Award and Reaffirms No Punitive Damages for Delayed Cure Absent Bad Faith

Introduction

In Vaughn v. American Commercial Barge Line, L.L.C. (No. 23-30494, 5th Cir. Oct. 17, 2025), the Fifth Circuit addressed three central issues arising from a Jones Act bench trial in which the defendant stipulated to liability and the only questions concerned damages:

Whether the district court clearly erred in awarding full past wage loss without deducting earnings Vaughn could have made by returning to work before trial (mitigation).
Whether the district court’s future wage-loss award complied with the four-step framework mandated by Culver v. Slater Boat Co. (Culver II), 722 F.2d 114 (5th Cir. 1983) (en banc).
Whether the employer’s delays and disputes in paying cure warranted punitive damages and attorney’s fees.

The panel (Richman, Oldham, and Ramirez, JJ.; opinion by Judge Richman) affirmed the district court’s past wage loss award under a deferential clear-error standard; vacated and remanded the future wage loss award for lack of a Culver II-compliant explanation; and affirmed the denial of punitive damages and attorney’s fees for maintenance and cure, reiterating that delayed reimbursement, without bad faith or egregious conduct, does not suffice. Although the opinion is not designated for publication under 5th Cir. R. 47.5, it provides practical guidance for trial courts and litigants on damages proofs in Jones Act cases.

Summary of the Opinion

Past wage loss (affirmed): The district court credited Vaughn’s testimony and his expert’s estimate ($221,246) and implicitly found no failure to mitigate; that finding was not clearly erroneous despite Functional Capacity Evaluations (FCEs) and physician testimony suggesting a possible earlier return to work.
Future wage loss (vacated and remanded): The district court awarded $750,000 by “extrapolating” between plaintiff’s expert ($1,604,256) and defendant’s expert (about $405k–$497k, midpoint ~$450,837) without explaining the Culver II steps or selecting and justifying a below-market discount rate. The Fifth Circuit remanded for specific findings consistent with Culver II.
Punitive damages and attorney’s fees for maintenance and cure (affirmed denial): ACBL investigated, paid substantial medical expenses (~$149,813.56 pretrial), sought documentation (including proof of payment), and ultimately agreed to pay without it. Delays alone do not warrant punitive damages, and the record did not show bad faith or egregious, callous conduct.

Detailed Analysis

I. Procedural Posture and Standards of Review

After ACBL stipulated to Jones Act liability, a bench trial was held on damages. The appellate court reviewed issues of law de novo and factual findings, including the mitigation determination and compensatory damages, for clear error. The denial of punitive damages was reviewed for abuse of discretion.

Law vs. fact: Damages methodology (e.g., compliance with Culver II) is reviewed de novo; the resulting fact findings (amounts, credibility) are reviewed for clear error.
Mitigation: Failure to mitigate is an affirmative defense; the defendant bears the burden. Findings on mitigation are factual and reviewed for clear error.
Punitive damages (maintenance and cure): The grant or denial lies largely within the trial court’s discretion, subject to abuse-of-discretion review.

II. Past Wage Loss and the Duty to Mitigate

A. Precedents Cited

Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 490 (5th Cir. 1985) and Smith v. Atlas Off-Shore Boat Serv., Inc., 653 F.2d 1057, 1064 (5th Cir. Unit A 1981): Seamen must mitigate damages by seeking reasonable alternative employment.
Kratzer v. Capital Marine Supply, Inc., 645 F.2d 477, 484 (5th Cir. Unit A 1981) and Realty Income Corp. v. Golden Palatka, L.L.C., 2022 WL 1517033 (5th Cir. 2022): Failure to mitigate is an affirmative defense; defendant bears the burden.
Ramirez v. American Pollution Control Corp., 364 F. App’x 856 (5th Cir. 2010) and Kiwia v. M/V OSLO BULK 9, 541 F. Supp. 3d 696 (E.D. La. 2021), aff’d, 2022 WL 3006214 (5th Cir. 2022): Past wages may be reduced when evidence shows a reasonably available return-to-work date.
Michel v. Total Transp., Inc., 957 F.2d 186, 192 (5th Cir. 1992): Fact-finders may accept or reject expert reports in whole or part.
Knight v. Kirby Offshore Marine Pac., L.L.C., 983 F.3d 172, 180 (5th Cir. 2020): Uphold findings that are “plausible in light of the record.”
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985): Appellate courts do not reverse simply because they would have decided differently.
Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 259 (5th Cir. 2006): Special deference to credibility determinations.

B. Legal Reasoning and Application

ACBL argued that FCEs and physician testimony showed Vaughn could return to work well before trial, and thus his past wage-loss award should be reduced by $38,287.09 to reflect what he could have earned. Vaughn countered that he was in pain, continuing treatment, unsure of accommodations, and not told by his doctor he could work; he also testified to contacting potential employers.

The Fifth Circuit held the district court did not clearly err in accepting the plaintiff’s expert figure for past wage loss. The trial court found Vaughn credible, could credit his efforts to seek employment, and could accept his expert’s calculations. The court emphasized the highly deferential clear-error standard, especially where credibility is central. The implicit finding that Vaughn did not fail to mitigate was “plausible in light of the record.”

C. Practical Takeaways on Mitigation

Defendants must marshal concrete evidence showing reasonable jobs were available and that the plaintiff could perform them by a specified date.
Plaintiffs should document job-search efforts; credible testimony can carry substantial weight.
FCEs and physician clearances are relevant but not dispositive if the trial court credits contrary testimony about pain, ongoing treatment, and practical employment hurdles.

III. Future Wage Loss: Culver II Compliance

A. The Culver II Framework and Key Authorities

Culver v. Slater Boat Co. (Culver II), 722 F.2d 114 (5th Cir. 1983) (en banc): Mandates a four-step approach:
1. Estimate lost work life.
2. Calculate the lost income stream.
3. Compute total damages over the work-life period.
4. Discount to present value using a “below-market” discount rate, absent stipulation.
The “paramount concern” is awarding a sum that truly replaces the earnings the plaintiff would have made.
Nesmith v. Texaco, Inc., 727 F.2d 497, 498 (5th Cir. 1984): The lost income stream is then discounted by a below-market rate to present value.
Hydrospace–Challenger, Inc. v. Tracor/MAS, Inc., 520 F.2d 1030, 1034 (5th Cir. 1975): Findings must be sufficiently particular to permit meaningful appellate review.
Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 623 (5th Cir. 1996): Failure to properly conduct the Culver II steps is clear error.
Hernandez v. M/V Rajaan, 841 F.2d 582, 587 (5th Cir. 1988): Reliance on crude averages or inapt proxies can be clearly erroneous under Culver II.
Culver II, 722 F.2d at 122: When adopting a pre-tax discount rate of 1–3%, explain the reasons.

B. What Went Wrong Below

The district court selected $750,000 for future wages by “extrapolating” between widely disparate expert figures without explaining:

How it determined lost work life (start and end dates, expected retirement).
What earnings base and trajectory it adopted (including promotions/productivity, tax treatment).
How it computed the total stream and whether it netted out taxes.
What below-market discount rate it selected, and why.

Because “the district court did not provide a Culver II analysis or any indication that it incorporated Culver II into its calculations,” the Fifth Circuit could not “determine rather than speculate that the law has been correctly applied.” Averaging or midpoint “extrapolation” between expert outputs, without the required analytical findings, is not a substitute for the Culver II method.

C. Instructions for Remand

The panel vacated and remanded for a Culver II-compliant analysis, directing the district court to:

Apply and explain each of the four Culver II steps.
Identify the evidence supporting each step, including any reliance on one or both experts.
Select and justify an appropriate below-market discount rate.
Address specific issues ACBL raised concerning Vaughn’s expert report to the extent relied upon.

D. Practical Guidance for Trial Courts and Experts

Do not “split the difference” between experts; make findings on each Culver II step with record citations.
Be explicit about:
- Work-life expectancy and return-to-work assumptions.
- Base wages and expected progression (exclusive of general inflation).
- Tax treatment of the earnings stream (after-tax vs. pre-tax) and internal consistency with the discount rate selection.
- The below-market discount rate and the reasons for choosing it.
Ensure that inflation is accounted for via the below-market discounting rather than embedded in both the income stream and the discount rate.

IV. Maintenance and Cure: Punitive Damages and Attorney’s Fees

A. Governing Principles and Cited Authorities

Vaughan v. Atkinson, 369 U.S. 527 (1962): Attorney’s fees available when seaman is forced to hire counsel to recover maintenance and cure.
Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009): Punitive damages are available for willful failure to pay maintenance and cure.
Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987): “Escalating scale” of liability; punitive damages require conduct that is callous, recalcitrant, arbitrary, capricious—i.e., “egregiously at fault.”
Harper v. Zapata Off-Shore Co., 741 F.2d 87, 90 (5th Cir. 1984): No bright line; seaman must show “an element of bad faith.”
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005): Employer may investigate before paying maintenance and cure.
McWilliams v. Texaco, Inc., 781 F.2d 514 (5th Cir. 1986): Delays while awaiting reasonable documentation can be reasonable; no punitive damages absent arbitrary/callous conduct.
Ober v. Penrod Drilling Co., 726 F.2d 1035, 1037 n.4 (5th Cir. 1984): Untimely payment alone does not justify punitive damages.
Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728 (5th Cir. 2013): Employer entitled to investigate without incurring punitive exposure.

B. Factual Context

February 2021: ACBL’s counsel agreed to pay specified medical expenses (including imaging and discogram-related costs).
March–April 2021: Plaintiff’s counsel sent bills; August 2021: follow-up; ACBL noted its internal medical coordinator was handling.
June 2022: Another follow-up; May 2023: ACBL requested proof of payment and followed up twice; later that month plaintiff’s paralegal sent an updated list and copies of cancelled checks.
ACBL paid ~$149,813.56 before trial, sought documentation on other bills, disputed a palliative service, and ultimately agreed to pay without proof of payment.

C. Legal Reasoning and Outcome

The Fifth Circuit affirmed the denial of punitive damages and attorney’s fees. The record showed ACBL acknowledged the claim, investigated, paid substantial amounts, and sought documentation amid administrative confusion (including duplicate or already-paid items). Untimely payments were not an independent basis for punitive damages, and the conduct did not evince bad faith or the egregiousness required. The case closely resembled McWilliams, where delays tied to documentation requirements were held reasonable.

D. Practical Guidance on Maintenance and Cure

For employers: Promptly acknowledge claims; communicate documentation needs; follow up with providers; keep a clear audit trail. Investigatory diligence cuts against punitive exposure.
For seamen: Supply medical reports and proof of payment promptly; track communications; quantify any consequential harm from delays if seeking compensatory damages.
For both sides: Untimely payment, without more, will not support punitive damages; the inquiry turns on reasonableness, diligence, and good faith.

Complex Concepts Simplified

Mitigation of damages: An injured party must take reasonable steps to reduce losses (e.g., seeking alternative work). The defendant must prove the plaintiff unreasonably failed to mitigate and what earnings were realistically available.
Functional Capacity Evaluation (FCE): A standardized test of physical abilities used to assess readiness to return to work. Useful evidence, but not conclusive if outweighed by credible testimony about pain/treatment.
Culver II four-step method:
1. Determine how much work-life was lost due to the injury.
2. Project what the seaman would have earned each year (exclusive of general inflation).
3. Add up those future earnings over the work-life.
4. Discount that total to today’s dollars using a below-market (real) rate that accounts for inflation.
Below-market discount rate: A “real” interest rate (typically 1–3% in many cases historically) used to convert future earnings to present value while implicitly accounting for inflation. The court must select and explain the rate.
Present value: The amount of money today that, invested at the chosen discount rate, would equal the stream of future earnings as they would have occurred.
Maintenance and cure: A maritime employer’s no-fault duty to pay an injured seaman’s basic living expenses (maintenance) and medical care (cure) until maximum medical improvement. Investigations into entitlement and amount are permitted.
Punitive damages (maintenance and cure): Available for willful, callous, or egregious refusals to pay. Mere delay, administrative error, or reasonable requests for documentation typically do not suffice.
Standards of review:
- De novo: the appellate court decides the legal issue anew.
- Clear error: factual findings stand if plausible in light of the record; significant deference to the trial judge, especially on credibility.
- Abuse of discretion: appellate court defers unless the decision falls outside the range of permissible choices.

Impact and Practice Implications

1. For District Courts

Do not merely average or “extrapolate” between expert figures for lost future earnings. Make explicit, record-supported findings for all four Culver II steps and select and justify a below-market discount rate.
Ensure internal consistency: if the earnings stream is after-tax, the discount rate methodology should align with that choice; explain the approach.
When ruling on mitigation, articulate credibility findings and the evidence supporting the plaintiff’s efforts to secure alternative work.

2. For Plaintiffs

Document job-search efforts and practical impediments to returning to work (treatment schedules, limitations, lack of accommodation).
Work closely with economic experts to produce Culver II-compliant models and be prepared to explain assumptions on work-life, wage trajectory, taxes, and discounting.
To pursue punitive damages for cure, build a record of employer bad faith: ignored claims, cutoffs after retaining counsel, refusal despite medical documentation, or failure to reinstate after new diagnoses.

3. For Defendants

To reduce past wages, prove not only capability to return to work but also reasonable availability of suitable jobs and what the plaintiff would have earned.
Challenge future wage models by spotlighting deviations from Culver II (e.g., double-counting inflation, inconsistent tax treatment, unsupported work-life assumptions).
On cure, timely request documentation, track payments, and communicate. Documentation-based delays are often deemed reasonable; untimely payment alone does not trigger punitive exposure.

4. Systemic Effects

This decision underscores that a conclusory midpoint between dueling experts is legally insufficient. Expect more detailed damages findings in bench trials.
While unpublished, the opinion reinforces Fifth Circuit expectations under Culver II and the high threshold for punitive damages in maintenance and cure disputes.

What Happens Next

On remand, the district court must:

Identify and explain Vaughn’s lost work-life expectancy.
Set out the lost earnings stream (including any wage growth unrelated to general inflation) and its tax status.
Compute total losses and discount to present value with a stated, justified below-market rate.
Address any methodological defects in the relied-on expert report.

The affirmed components—past wage loss and the denial of punitive damages and attorney’s fees—remain final absent further proceedings affecting them.

Conclusion

Vaughn confirms and clarifies two important points of maritime damages law in the Fifth Circuit:

Future wage loss cannot be set by averaging competing expert figures. Trial courts must conduct and explain a Culver II analysis—lost work life, earnings stream, total computation, and below-market discounting—to ensure the award truly replaces the earnings lost.
Delayed cure payments, without bad faith, do not warrant punitive damages or attorney’s fees. Employers are entitled to investigate and request reasonable documentation; punitive exposure requires egregious, callous conduct.

On past wages, the opinion is a reminder of the deference appellate courts afford to credibility-based mitigation findings. On future wages, it is a pointed warning: the path of least resistance—splitting the difference between experts—will not survive review. Together, these holdings offer concrete, practice-focused guidance to judges and litigants on building and scrutinizing damages records in Jones Act cases.