Opinion
Civil Action No. 99-652, Section "G"
May 1, 2000
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Background
This is an action brought by Brian Lauland against Hugh Eymard Towing Co., Inc., his former employer, and Todd Michael, Inc., the owner of the M/V TODD MICHAEL, for injuries sustained on March 14, 1997 while in the service of the M/V TODD MICHAEL. Jurisdiction is in admiralty. Lauland alleges causes of action under the Jones Act, 46 U.S.C. § 688 and the general maritime law for negligence, unseaworthiness and/or maintenance and cure.
The action was tried to the bench on April 17, 2000 and was completed in one day. Oral and documentary evidence was introduced during the course of the trial and the parties filed written briefs both before and after trial. I have considered the facts and the applicable law and now issue these findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).
II. Findings of Fact
Brian Lauland is a 38 year old male whose employment history is one of manual labor.
On March 14, 1997, at the age of 35, Lauland was employed by Hugh Eymard Towing Co., Inc. ("Hugh Eymard") to serve as a deckhand aboard the M/V TODD MICHAEL. The M/V TODD MICHAEL is a model bow deck loader owned by Todd Michael, Inc. at all pertinent times. Lauland had worked for Hugh Eymard on prior occasions in 1994, 1995 and 1996, in various capacities. On the hitch beginning on March 11, 1997, Lauland was earning a salary of $75.00 a day and working a 14 day on/7 day off schedule.
Prior to employing Lauland for the March 1997 hitch, Hugh Eymard administered a preemployment health interview but no preemployment physical examination. During the interview, as reflected in a written form admitted into evidence, Lauland denied prior physical problems or hospitalizations of any nature. Many of Lauland's representations on the preemployment form concerning his physical health and hospitalization record were directly refuted, however, by medical records admitted into evidence during trial. Based on Lauland's answers to questions on the form, and his verbal assurances of his good health, representatives of Hugh Eymard made no attempt to verify independently the information provided by Lauland.
At least with regard to Lauland's diabetes, however, Todd Eymard, the owner of Hugh Eymard, admitted independent knowledge of Lauland's condition, as well as knowledge of diabetes complications, such as vomiting, that Lauland had experienced during prior employment by Hugh Eymard. Nevertheless, at the time he was hired in 1997, Lauland's own testimony at trial was that he believed himself fit for duty, and Todd Eymard testified that Lauland verbally assured representatives of Hugh Eymard that his condition was under control and would pose no threat to his employment.
On March 14, 1997, the third day of Lauland's March 1997 hitch, the M/V TODD MICHAEL was engaged in transporting a fuel barge and a water barge to the Fleming Canal Store for resupplying and refueling, and then on to a location in Bayou Perot. The barges were separated at the Fleming Canal Store during the Schlumberger, were assigned the task of tying the two barges back together before disembarking from the Fleming Canal Store.
During the tying operation, the barges were located in the waters abutting an inverted L-shaped dock. The fuel barge was located directly adjacent to the leg of the dock. The water barge, the smaller of the two barges, was brought around and lined up beside the fuel barge. The M/V TODD MICHAEL was then positioned beside the water barge. Carmouche was on the fuel barge and Lauland was on the water barge. Captain Neal Cheramie, who was operating the M/V TODD MICHAEL, was in the tug's wheelhouse.
In order for the barges to be secured together, Captain Cheramie had to position and operate the tug so that the barges remained adjacent to each other. Carmouche and Cheramie testified that the dock on the opposite side of the fuel barge was somewhat insecure, so it was not feasible for Captain Cheramie to maintain power consistently against the barges. It is undisputed that the barges occasionally would separate while Carmouche and Lauland were attempting to secure them. Lauland and Carmouche communicated with Cheramie by hand signals to direct him in keeping the barges together.
After Lauland and Carmouche had secured the barges at one point, they moved to the farthest point from the wheelhouse of the tug, to the area closest to the dock, where the water barge lined up with the mid-point of the larger fuel barge. There was an approximately eight to ten foot high shed located on the water barge, behind which Lauland had to walk to conduct this portion of the job. Captain Cheramie was unable to see Lauland once he walked behind the shed, but testified that he was able to see Carmouche on the fuel barge at all times.
There was some testimony about a two-tiered safety chain railing located on the edge of the water barge and Lauland's possible removal of the top rail in order to get to the bitt. Defendants maintain that this created a hazard and, in fact, Lauland tripped backward over the remaining bottom half of the chain, causing the first fall. I find the evidence conflicting and generally unconvincing on this issue, and make no finding on this issue.
While Lauland was attempting to secure the line to the fuel barge, and after he had made a single pass at the cavel on the fuel barge and was still holding, indeed pulling, the line, the barges parted and Lauland fell backward onto the deck, hitting his head. Lauland arose, rubbed his head and finished the task.
Lauland then began walking toward the other end of the water barge. While within the view of Captain Cheramie and Mickey Carmouche, Lauland collapsed onto the deck of the barge and began convulsing uncontrollably. It is undisputed that this episode was in the nature of a seizure.
Captain Cheramie and Mickey Carmouche rushed to Lauland's side. The paramedics arrived within five or ten minutes. One of the paramedics, Steve Brown, testified that examination of Lauland at the scene of the accident revealed a hematoma on the back of his head, post-seizure confusion and sweatiness, and a normal blood glucose level. Lauland advised Brown that he had a history of hypertension, diabetes and ulcers and that he had not eaten all day.
Lauland was transported by ambulance to the Medical Center of Louisiana (Charity Hospital) and then, at his request, was transported to West Jefferson Medical Center. Lauland was treated by Dr. James Todd, an orthopedic surgeon, who diagnosed Lauland as having fractured his left hip.
On March 15, 1997, Dr. Todd surgically repaired Lauland's hip fracture. Dr. Todd continued to treat Lauland through the summer of 1997, and in July of 1997 was of the opinion that Lauland would have reached maximum medical improvement by August 1997. However, Lauland, without any credible explanation, failed to attend his August 1997 appointment with Dr. Todd and made no further appointments with Dr. Todd. Dr. Todd further was of the opinion that Lauland did not experience any elbow, neck, back or knee injury in connection with the March 1997 accident.
After being operated on by Dr. Todd, Lauland also began seeing Dr. John Olsen, to whom he related a history of neck, back and elbow problems purportedly related to the March 1997 accident. Lauland points to no definitive, conclusive or persuasive evidence that he suffers from a significant cervical or lumbar injury or that these injuries are connected to the hip fracture. Further, the credible testimony of both Dr. Todd, plaintiff's treating physician, and Dr. Carlos Pisarello, a neurosurgeon retained by defendants to examine Lauland, suggests the contrary. I find insufficient evidence of any significant injury other than the hip fracture related to the March 14, 1997 accident.
It is undisputed that the hip fracture occurred during the second fall. As Dr. Todd testified, if Lauland had fractured his hip in the first fall, he would not have been able to get up and walk to the opposite side of the barge afterward.
Lauland contends that the seizure, which caused the second fall and hip fracture, was caused by the blow to his head sustained in the first fall, which, in turn, was caused by (1) the negligence of Captain Cheramie in allowing the barges to separate during the tying operation and/or (2) the unseaworthiness of the M/V TODD MICHAEL in having an incompetent captain. Defendants contend that the seizure was caused by diabetes-related complications, hypoglycemia resulting from Lauland taking his diabetes medication but not eating properly on the day of the accident.
There is medical evidence indicating that the type of seizure experienced by plaintiff may be caused by both a head injury, as well as by hypoglycemia. However, when asked specifically what caused plaintiff's seizure, only two of the testifying physicians tesified in terms of probability as opposed to possibility. Dr. Carlos Pisarello testified that it is more probable that Lauland's seizure was brought on by diabetes-related complications, seizure was brought on by diabetes-related complications, considering plaintiff's pre- and post accident medical records, as well as studies demonstrating the extreme rarity of seizures following minor head injuries.
Dr. Jose Marina, a general practitioner with experience treating diabetes and related conditions, who began treating plaintiff in October 1997, also offered some testimony that might be read as suggesting a likelihood that Lauland's seizure was related to his diabetes. On at least four occasions in the years following the relevant incident, Lauland experienced similar seizures and falls, after which he nevertheless showed a normal blood sugar level. Dr. Marina conceded that although hypoglycemic seizures are generally uncommon, based on plaintiff's condition, as manifested in the years following the accident, the March 14, 1997 seizure was related to plaintiff's diabetic condition.
Additional evidence makes it more than likely that, at least in Lauland's case, the seizure was caused by diabetes-related complications, not the bruise to his head. The evidence concerning what and when Lauland ate on the day of the accident is relevant on this issue. Plaintiff testified that on March 14, 1997, he ate breakfast at 4:30 a.m., ate a roast beef sandwich from the Fleming Canal Store around 9:30 a.m. and ate a barbeque beef sandwich at 10:00 a.m. Mickey Carmouche testified that he never saw plaintiff go into the Fleming Canal Store, and although Carmouche testified that he thought plaintiff ate some potato chips around lunch time, plaintiff himself never testified that he ate chips.
Steve Brown, the emergency medical technician who treated plaintiff at the scene of the accident, testified that plaintiff told him at the scene of the accident that he had diabetes and had not eaten all day. Although he testified that plaintiff was somewhat confused, he also testified that plaintiff was mentally stable and coherent enough to discuss his medical history.
Captain Cheramie testified that he did not recall seeing Lauland eat at all on the day of the accident, but admitted that Lauland might have eaten out of his presence.
I find that even accepting plaintiff's testimony about what he ate, there is still a significant lapse of time between when he last ate (mid-morning) and when the accident happened (midafternoon). Based on my appreciation of the medical testimony, for a diabetic, this qualifies as eating improperly.
The fact that Lauland's blood glucose level registered within normal range when tested by the paramedics does not defeat this finding. Dr. Carlos Pisarello testified that a seizure alone can bring a person's blood glucose level back within normal range, undermining plaintiff's reliance on his post-accident normal blood sugar level as evidence that the seizure was unrelated to his diabetes. There was also some testimony, though I find it unnecessary to rely on it, to the effect that Lauland was given a soft drink or candy following his seizure.
Additional evidence undermines plaintiff's credibility concerning his care for himself, despite appearances of good health. There was significant credible evidence, largely from plaintiff's own physicians, Drs. Marina and Chakraborti, indicating that Lauland was not vigilant about his diabetes, had a history of not properly monitoring his diet or taking his medication, failed to keep dialysis appointments and had a history of smoking and drinking alcohol in spite of his condition.
With regard to treatment of Lauland's injuries, it is undisputed that Hugh Eymard paid maintenance and cure in connection with treatment of Lauland's hip injury through July 31, 1997. Termination of maintenance and cure was based on the opinion of Dr. Todd, one of plaintiff's treating physician's, that Lauland had reached maximum medical improvement with regard to his hip injury.
Plaintiff continues to be treated for diabetes-related complications. Since approximately July 1998, Lauland has been totally and permanently disabled due to diabetes-related kidney failure and has undergone a number of amputations. He currently is on dialysis and it is undisputed that his diabetes-related treatment has been covered by Medicare. No maintenance and cure has been paid for this treatment.
III. Conclusions of Law
This court has jurisdiction pursuant to 28 U.S.C. § 1333 and 46 U.S.C. § 688.
At the time of his accident on March 14, 1997, plaintiff Brian Lauland was a Jones Act seaman employed by defendant, Hugh Eymard Towing Co., Inc.
46 U.S.C. § 688; McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991).
A. Liability Under the Jones Act
With regard to Hugh Eymard's liability under the Jones Act, 46 U.S.C. § 688, plaintiff must establish the existence of a duty on the part of the defendant, a breach of this duty, and a causal connection between the damages he sustained and the breach of duty.
Defendant Hugh Eymard Towing Co. was under a duty to exercise reasonable care to provide Brian Lauland with a reasonably safe place to work and is liable in damages for injury resulting in whole or in part from the negligence of its officers, agents or employees, including its captain.
See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).
Hugh Eymard did not breach this duty in connection with plaintiff's accident on March 14, 1997. With regard to Lauland's initial fall, the testimony of plaintiff, Captain Cheramie and Mickey Carmouche describes circumstances reasonably expected for this type of operation. The separation of the barges, such as that experienced on March 14, 1997, was a common occurrence and, in this case, was unavoidable. Both the location of the tug and the Captain's method of keeping the barges together were reasonably safe under the circumstances.
In any event, plaintiff fractured his hip during the second fall, which resulted from a diabetic seizure. Plaintiff has alleged in certain pretrial memoranda that Captain Cheramie was negligent in connection with plaintiff's diabetic-induced seizure. Captain Cheramie testified that although he knew Lauland was diabetic and was concerned about Lauland, he could not say if and when Lauland had eaten. Lauland himself testified that he and the Captain rarely ate at the same time. Captain Cheramie further testified that Lauland led him to believe he was doing whatever was necessary health-wise, and according to Cheramie and Carmouche, until the seizure, Lauland exhibited no signs of illness. Under these circumstances, it was reasonable for Captain Cheramie to assume that Lauland could perform his job safely. I find no negligence on the part of Captain Cheramie or Hugh Eymard.
If anything, plaintiff's own negligence was the cause of his seizure and injury. In assessing a plaintiff's negligence, a seaman is obligated under the Jones Act to act with ordinary prudence under the circumstances. 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 and education. In other words, under the Jones Act a seaman has the duty to exercise that degree of care for his own safety that a reasonable seaman would exercise in like circumstances.
See Id.
Even assuming I had found that the injury-producing second fall was related to the initial fall, it was plaintiff's own negligence that caused the initial fall. Immediately before the alleged fall, plaintiff relied on a single pass at the fuel barge's mid-point cavel to hold the line in place, and pulled on the line with the weight of his body after making this insufficient connection. Both Captain Cheramie and Mickey Carmouche (who was not a Hugh Eymard employee) testified that the manner in which plaintiff temporarily secured the line was insufficient and it would be unsafe for plaintiff to rely on that connection to support his weight while holding the unsecured line. Carmouche testified that had plaintiff taken three turns around the cavel, as he should have, plaintiff would have been able to hold the line against the pull of the barges as they separated. Plaintiff blames the movement of the barges, which he attributes to Captain Cheramie's negligence. However, I find that the movement of the barges, as described by all of the witnesses, was ordinary and expected for this type of operation, and a reasonable and prudent seaman would anticipate such movement when securing a line from one barge to another.
Lauland also was negligent with respect to his diabetes. There is sufficient medical and lay testimony to find that plaintiff played fast and loose with his condition. Plaintiff himself reported to the paramedics that he had not eaten all day on March 14, 1997. Even if his conflicting testimony at trial concerning what he ate that day could be believed, his diet on the day of the accident was still insufficient to prevent the diabetes-related complications that led to his seizure.
For these reasons, I find that no negligence on the part of Hugh Eymard or its employees contributed in any degree to the injuries sustained by plaintiff on March 14, 1997.
B. Unseaworthiness of the M/V TODD MICHAEL
Under the general maritime law, defendant Todd Michael, Inc., owed Lauland a duty to provide a vessel reasonably fit for its intended use, including a duty to supply a competent crew. Although Captain Cheramie candidly admitted that he was unfamiliar with this precise vessel, and had experienced some difficulty maneuvering the tug earlier in an earlier leg of the voyage, I find that Captain Cheramie was sufficiently trained and qualified to operate the M/V TODD MICHAEL for all relevant purposes. Plaintiff's own testimony concerning Captain Cheramie's alleged incompetence focused largely on the earlier leg of the trip, when Captain Cheramie asked plaintiff for assistance in piloting the vessel, not on Captain Cheramie's maneuvering during the tying operation. Based on the testimony concerning his licenses and experience, as well as the testimony of Mickey Carmouche, according to whom Captain Cheramie was competent to operate the vessel, I find that the M/V TODD MICHAEL was not unseaworthy.
See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960);Boudoin v. Lykes Bros. SS Co., 348 U.S. 336, 339 (1955).
C. Maintenance and Cure
Maintenance and cure provides a seaman, who is disabled by injury or illness while in the service of the ship, medical care and treatment, and the means of "maintaining himself, while recuperating.
Maintenance and cure is not tort-based, so a seaman is entitled to maintenance and cure even though he was not injured as a result of any negligence on the part of his employer or any unseaworthy condition of the vessel. To recover maintenance and cure, the plaintiff need only show that he suffered an injury or illness while in the service of the vessel on which he was employed as a seaman, without willful misbehavior on his part. The injury or illness need not be work related, and it may be the recurrence of a preexisting illness; it need only occur while the seaman is in the service of the ship. Maintenance and cure may not be reduced because of any negligence on the part of the seaman.
See Pacific S.S. Co. v. Peterson, 278 U.S. 130, 138 (1928).
See Breese v. AWL, Inc., 823 F.2d 100 (5th Cir. 1987).
Lauland fractured his hip while he was in the service of the TODD MICHAEL for Hugh Eymard. Hugh Bymard has paid maintenance and cure to the point it contends is maximum medical improvement of Lauland's hip fracture, but nevertheless now urges that the seizure, and thus the hip fracture, resulted from plaintiff's own willful misbehavior. While I am willing to ascribe negligence to plaintiff in not caring for his diabetic condition, I am not willing, based on the evidence before me, to classify his conduct as willful misbehavior, as that term has been applied in maintenance and cure cases.
See e.g., Aguilar v. Standard Oil Co., 318 U.S. 724 (1943).
Plaintiff contends that he is entitled to cure for his hip fracture for dates extending beyond the date defendant cites as representing maximum medical cure. Maximum cure is the point at which no further improvement in the seaman's medical condition is reasonably expected. The obligation to provide maintenance and cure usually ends when qualified medical opinion is to the effect that maximum possible cure has been accomplished.
See Farrell v. United States, 336 U.S. 511 (1949).
See Breese, 823 F.2d at 104-05.
It is undisputed that, except for a bill of Charity Hospital and West Jefferson Ambulance Service, which Hugh Eymard stipulated at trial it would pay, Hugh Eymard has paid maintenance and cure for the hip injury through July 31, 1997. I find that July 31, 1997 represents the point of maximum cure for plaintiff's hip injury, based on the testimony of plaintiff's treating physician, Dr. Todd. Hugh Eymard's maintenance and cure obligation with respect to Lauland's hip fracture is therefore satisfied.
Plaintiff's diabetes-related seizure also occurred while he was in the service of Hugh Eymard. Defendant's argument, that because the condition was a preexisting one it is not a "manifestation," fails. Although it was in defense of plaintiff's claim that the blow to his head caused the seizure that the issue of a diabetic seizure was first raised, plaintiff, in pretrial memoranda, demanded recovery for the manifestation of his diabetes. Because evidence was presented and defendant did not object to plaintiff's reliance on it in the alternative, I will rule on the issue in the interest of judicial fairness and efficiency.
Plaintiff, in neither his Complaint, Amended complaint, nor Pretrial Order, demanded recovery for maintenance and cure for post March 1997 treatment of his diabetic condition, and never made a formal motion to amend consistent with the evidence presented at trial on this issue. The issue is mentioned only briefly in plaintiff's post-trial submission.
Defendant argues that Lauland's willful misconduct caused the diabetes-related seizure. Again, as discussed above, I am not prepared to bar the maintenance claim on grounds of willful misbehavior. Neither am I prepared to accept defendant's argument that plaintiff intentionally misrepresented or concealed his condition, in view of the fact that Hugh Eymard representatives had independent knowledge of his diabetes.
See McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 549 (5th Cir. 1968).
Nevertheless, plaintiff is not entitled to recover maintenance and cure for all post-March 14, 1997 treatment of his diabetes and diabetes-related complications. Plaintiff has offered no proof of maintenance expenses related to the treatment of his diabetes, and has offered insufficient proof of the cure to which he is entitled. Moreover, it is undisputed that plaintiff's medical treatment is covered by Medicare. The general rule is that there is no obligation to provide maintenance and cure if it is furnished by others at no expense to the seaman. The Second Circuit has held that to the extent that an injured seaman qualifies for Medicare, and the Medicare facilities are available within a reasonable distance from the seaman's residence, and competent physicians are likewise available and will accept Medicare payment, the employer's cure obligation is satisfied. The Fifth Circuit has not ruled on this issue, but at least one other judge in this district has followed the Second Circuit precedent. I find the Second Circuit precedent similarly persuasive on the facts of this case, and find that plaintiff is not entitled to maintenance and cure for the diabetic-related complications that post-date the March 14, 1997 accident.
See Vaughn v. Atkinson, 369 U.S. 527 (1962).
See Moran Towing Transp. Co. v. Lombas, 58 F.3d 24 (2d Cir. 1995).
See In re Matter of Gulf Pride Marine Service, Inc., 1997WL118394 (E.D.La. 1997) (Fallon, J.).
Accordingly,
IT IS ORDERED that defendants Hugh Bymard Towing Co., Inc. and Todd Michael, Inc. are not liable to plaintiff. Let judgment be entered accordingly.