Valdez v. Laborde Marine Lifts, Inc.

Full title: JOSE NORBERTO VALDEZ v. LABORDE MARINE LIFTS, INC

Court: United States District Court, E.D. Louisiana

Date published: Feb 12, 2008

CIVIL ACTION NO. 04-1124, SECTION "K" (3) (E.D. La. Feb. 12, 2008)

Opinion

CIVIL ACTION NO. 04-1124, SECTION "K" (3).

February 12, 2008

REPORT AND RECOMMENDATION

DANIEL KNOWLES, District Judge

This case is referred to the undersigned United States Magistrate Judge for the determination of the amount of reimbursement due plaintiff and plaintiff's counsel for medical expenses (cure)¹ and submission of a report with recommended findings of fact and conclusions of law. Considering the Defendant's Motion for Judgment on Medical Expense Reimbursement and Plaintiff's Response, the record and the applicable law, IT IS RECOMMENDED that, with respect to reimbursement for cure due plaintiff and plaintiff's counsel, judgment be GRANTED in the amount of $19,604.46 for the following reasons.

1 See Order of Reference dated August 31, 2007 [Doc. # 123]; Defendant's Motion for Judgment on Medical Expense Reimbursement Due to Plaintiff and Plaintiff's Counsel [Doc. #133]; Plaintiff's Memorandum in Response [Doc. #132].

I. Nature of the Case and Course of Proceedings

On April 20, 2004, Jose Norberto Valdez filed suit against defendants, Laborde Marine Lifts, Inc. and BP America Production Company, alleging he injured his back and torso on March 11, 2004 while stepping out of a hatch door on the M/V LAB LIFT II. Plaintiff complained that the mat upon which he stepped slid and the accident was the result of both negligence and unseaworthiness of the vessel.² On August 7^th, 2007, BP's Motion for Summary Judgment was granted and a Rule 54(b) Judgment issued.³ On August 29, 2007, plaintiff settled his claims against his Jones Act employer, Laborde Marine Lifts, Inc., for the payment of $850,000.00 plus any unpaid or unreimbursed⁴ cure in an amount not to exceed $350,000.00.

2 See Plaintiff's Complaint Under the Jones Act filed April 20, 2004 [Doc. #1]; Plaintiff's First Supplemental and Amended Complaint adding BP America Production Co. filed November 10, 2004 [Doc. #12].

3 See Order and Reasons dated August 27, 2007 (dismissing all of the plaintiff's claims against BP America) [Doc. #119]; Order Granting Motion for Rule 54(b) Judgment [Doc. #122].

4 The instant motion solely addresses reimbursement of payments made by the plaintiff and plaintiff's counsel for plaintiff's medical treatment/cure. The issue of payment of plaintiff's outstanding unpaid medical expenses is currently the subject of an outside audit.

Pursuant to the reference of the district judge, the undersigned convened a status conference and issued a briefing scheduled. The parties filed their respective submissions and the matter was deemed submitted on January 23, 2008.⁵

5 See Minute Entry dated November 29, 2007 [Doc. #131].

II. Defendant's Motion for Judgment on Medical Expense Reimbursement

Defendant timely filed the aforesaid motion, providing a listing of the disputed maintenance and cure charges and a memorandum explaining why certain charges claimed as reimbursement were disputed. Plaintiff filed a response seeking an award in the total amount of $27,581.64 as reimbursement of medical expenses paid by the plaintiff and plaintiff's counsel. That sum consists of payments made by plaintiff himself allegedly in the total amount $10,652.89, payments made by counsel Jeffrey Stern in the stipulated amount of $10,264.00 plus payments made by counsel Jacobs Sarrat to various medical providers in the total amount of $6,664.75.⁶ Aside from listing six (6) separate payments by Jacobs Sarrat totaling $6,664.75 and five (5) categories of payments made by the plaintiff totaling $7,112.89, Valdez provides no explanation for the foregoing summation and defers without any explanation to "all . . . [of] the documentation submitted by the defendant and attached to its motion."⁷

As aforestated, defendant Laborde Marine Lifts, Inc. has disputed only certain items claimed as reimbursement by plaintiff's counsel (Jacobs and Sarrat) and the amounts claimed as reimbursement paid by the plaintiff (Jose Norberto Valdez). The disputed sums are discussed below serially

III. Jacobs and Sarrat's Payments

Defendant correctly notes that, on September 24, 2007,⁸ plaintiff's counsel submitted evidence of payments by Jacobs and Sarrat, as follows:

8 See Correspondence of Al Sarrat dated September 24, 2007 (stating "[p]lease find enclosed copies of all of our cancelled checks for related payments to Captain Valdez' health care providers") (italicized emphasis added) [Exhibit "D" to Defendant's Motion for Judgment].

(1) $1,500.00 Dr. William Francis #26365 dated 2-27-07 (2) $ 950.00 Dr. Mark McDonnell #26188 dated 1-29-07 (3) $ 750.00 Dr. Paul Vaughan #26303 dated 2-16-07 (4) $2,050.00 Dr. Mark McDonnell #26546 dated 3-21-07 (5) $ 214.75 Northshore Orthopedics Assoc. #25104 dated 8-30-06 Other than the five listed above, plaintiff provided the Court with no other cancelled checks issued by Jacobs and Sarrat. Nevertheless, plaintiff has listed in his response memorandum at Item 6 a Jacobs Sarrat check made payable to Dr. Ximines in the amount of $1,200.00.⁹ In the absence of proof of payment (and there is none with respect to Dr. Ximines), plaintiff has failed to meet his burden of proof with respect payment of the sum of $1,200.00 to Dr. Ximines.

Addressing payments made to Drs. McDonnell and Vaughn (items 2 through 4 above), said payments directly correlate with charges for litigation expenses — i.e., not medical expenses/cure.¹⁰ Plaintiff did not favor the Court with a reply to the defendant's argument or discuss the evidence highlighted by defendants, which preponderates in favor of finding that the aforesaid payments in the amounts of $950.00, $2050.00 and $750.00 constitute payment for litigation support, not cure. These sums are not subject to reimbursement under the terms of the parties' settlement agreement.

10 See Dr. Paul Vaughn's Invoice No. 047190 dated 10-17-2006 in the amount of $750.00 (noting a procedure code of 99080-AT, the procedure being an "additional 30 minutes for depo" and the date of service 10-16-06) [Exhibit "E" to Defendant's Motion for Judgment]; Louisiana Spine Surgery/Dr. Mark McDonnell's Statement of Account No. 50482 (noting charges in the amounts of $950.00 and $2050.00 for services not covered under plaintiff's health plan, including case manager 30 minutes reference code 02389 with the date of service 1-31-07 and reports and narratives reference code 02421 with the date of service 2-13-07 and attorney's payment of same) [Exhibit "E" to Defendant's Motion for Judgment].

In summary, in addition to the stipulated amount of $10,264.00 to be reimbursed to Jeffrey Stern, plaintiff's counsel (Jacob and Sarrat) are entitled to reimbursement in the full amount of $1,714.75 (i.e., $1500.00 paid to Dr. William Francis plus $214.75 paid to Northshore Orthopedics Associates).

IV. Jose Norberto Valdez's Payments

Plaintiff submits the following itemization with respect to his own payment of medical expenses, to wit: "VALDEZ's PAYMENTS $2,224.00 ¹¹ TOTAL $7,112.89

11 Plaintiff's Response Memorandum at p. 1 (Listing Payments made by Valdez) [Doc. #132].

HEB Pharmacy $3,898.89 Health First/Legend Oaks Chiropractic $435.00 Joyce Martin — counseling $460.00 Westlank Clinic $95.00 Pain Stress Mgmt. Ctr. " (not $10,652.89 per plaintiff's computation) This Court's review of the particular facts evidenced by the invoices, statements, summaries of charges, receipts and other financial documents to which the plaintiff deferred reveals that the defendant has provided the more thorough and accurate analysis of the proof of payment provided by Valdez. Defendant's summary is recapitulated below. JOSE VALDEZ ^{12 13 14 15} 450.00 ¹⁶ TOTAL $7,625.71 ¹⁷ Co-Pays $1,109.80 (notwithstanding the lack of proof of payment) Prescription Receipts 1,045.66 Westlake Clinic 95.00 Pain Stress Mgmt. Ctr. 1,669.00 (not $1,669.00 plus $1,240.00 as claimed by plaintiff) H.E.B. 3,256.25 ($4141.41 less $885.16) Joyce Cargill As to the letter from Health First Chiropractic that $435.00 in charges for treatment spanning the period of June 7, 2007 through October 23, 2007 were paid, the submission is deficient in that there is no detailed accounting.¹⁸ The provider's letter suggests that some of the treatment was provided after the case was settled (i.e., after August 29, 2007). No detailed accounting was provided despite the defendant's request for same.¹⁹ Because the plaintiff has not demonstrated by a preponderance of the evidence that the charges were incurred prior to the settlement, the in globo amount claimed (i.e., $435.00) is not properly the subject of reimbursement pursuant to the terms of the settlement agreement. This Court will not engage in speculation as to what portion of the $435.00 in charges refers to the pertinent time frame.

V. Conclusion

In summary, the undersigned finds by a preponderance of the evidence that plaintiff and or plaintiff's counsel are entitled to reimbursement in the following amounts: $7,625.71 TOTAL $19,604.46

Jeffrey Stern $10,264.00 Jacobs Sarrat $1,714.75 Jose Norberto Valdez Accordingly and for all of the above and foregoing reasons,

IT IS RECOMMENDED that defendant's Motion #133 be GRANTED in the total amount of $19,604.46 all as more specifically set forth above, representing the total amount due as reimbursement of payments made by the plaintiff and plaintiff's counsel for medical treatment/cure pursuant to the terms of the settlement agreement.

Objections

Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United States Automobile Association, 79 F.3d 1415 (5^th Cir. 1996).