Cohn v. Diamond Offshore Management Co.

Full title: Howard Kelly Cohn v. Diamond Offshore Management Co, et al

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

Date published: Jul 25, 2003

02-2204 (E.D. La. Jul. 25, 2003)

Opinion

02-2204

July 25, 2003

MINUTE ENTRY

JAY ZAINEY, District Judge

Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 27) filed by defendant Diamond Offshore Management Company ("Diamond"). Plaintiff, Howard "Kelly" Cohn ("Cohn"), opposes the motion. The motion, set for hearing on July 16, 2003, is before the Court on the briefs without oral argument.¹ For the reasons that follow, the motion is DENIED.

1 Diamond filed a request for oral argument. The Court has determined that oral argument would not assist the Court in reaching a decision as to Diamond's motion.

I. Background

Cohn alleges that he injured his neck and shoulder while working aboard the M/V Ocean Yorktown in March 2000. Diamond was the owner/charterer of the vessel and was also Cohn's employer. During his convalescence Cohn was screened for asbestosis and silicosis. Cohn alleges that during the course of his employment with Diamond he was exposed to unreasonable amounts of asbestos and silica and as a result has developed asbestosis and silicosis. (Complaint at ¶ VIII).

Cohn filed suit against Cohn pursuant to the Jones Act and general maritime law. In addition to other elements of damages, Cohn has claimed psychological and emotional injuries in conjunction with the asbestosis and silicosis including a fear of developing cancer.

II. Discussion

Diamond moves for summary judgment on Cohn's claim for psychological and emotional damages related to the asbestosis and silicosis. Diamond recognizes that the law allows such recovery but asserts that Cohn's fear of contracting cancer is not "genuine and serious" as required by Norfolk Western Railway Co. v. Ayers, ___ U.S. ___, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003).

In opposition, Cohn asserts that his fear of contracting cancer is "genuine and serious." He argues that a determination as to whether his fear of cancer is reasonable under the circumstances is a fact question for the jury and therefore not appropriate for summary determination. The Court agrees.

1. Summary Judgment Standards

In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (citingCelotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id.

2. Asbestosis-related Psychological Injury

In Norfolk Western Railway Co. v. Ayers, the Supreme Court held that mental anguish damages resulting from the fear of developing cancer may be recovered under the Federal Employers' Liability Act ("FELA") by railroad workers suffering from asbestosis caused by work-related exposure to asbestos.² 123 S.Ct. at 1215. The Court reasoned that plaintiffs who develop asbestosis, unlike those who are merely exposed to asbestos but remain asymptomatic, have a cognizable physical injury. Id. at 1218-19. Because asbestosis is a physical injury, plaintiffs can recover damages for the mental pain and suffering attendant to that injury, and fear of developing cancer is one aspect of that pain and suffering. See id.

The Court went on to note the undisputed relationship between exposure to asbestos sufficient to cause asbestosis and asbestos-related cancer.Id. at 1222. Thus, an asbestosis sufferer would have good cause for increased apprehension about his vulnerability to another illness from his exposure, particularly one known to inflict "agonizing, unremitting pain." Id. The Court admonished, however, that plaintiff bears the burden of proving that his alleged fear is "genuine and serious." Id. at 1223 (citing Smith v. A.C. S., Inc., 843 F.2d 854 (5th Cir. 1988);Coffman v. Keene, 608 A.2d 416 (N.J.Super.Ct. App. Div. 1992)).

Although the Norfolk Court did not address the requisite proof that must be proffered by a plaintiff to sustain recovery for fear of developing cancer, the Fifth Circuit addressed the issue in Smith v. A.C. S., Inc., 843 F.2d 854 (5th Cir. 1988). In Smith, the Fifth Circuit reversed a jury award of damages for fear of future cancer because plaintiff had only testified as to his general concerns for his future health. Id. at 859. The appellate court held that such generalized concern was insufficient and that plaintiff must present evidence of his particular fear of developing cancerous conditions in the future. Id. at 859. The opinion does not suggest, however, that plaintiff cannot meet his burden if he relies only upon his own testimony. Further, plaintiff need not prove that his exposure will more likely than not lead to cancer. Id. at 859 n. 3.

In support of its motion, Diamond points out that in Cohn's April 2000 statement to Diamond's claims department, Cohn answered "no" when the interviewer asked him if there was anything else concerning the incident that the interviewer should know but had failed to ask. (Diamond Exhibit 3, at 14). It is clear from the colloquy that the incident referred to is the one aboard the Yorktown in which Cohn allegedly injured his neck/shoulder. The interviewer was not asking Cohn about damages related to his asbestos is.

Diamond also asserts that Cohn did not mention having a fear of cancer or that he was suffering from any emotional or psychological injuries during his deposition or to any of his physicians. While Cohn did not mention any specific fear of cancer, it also appears that no one asked him about that element of his claim. Further, Cohn submitted an affidavit asserting that he has a real and significant fear of cancer due to his asbestosis.³ (Rec. Doc. 33)

3 The Court is by no means deciding it this time whether the contents of the affidavit would meet Cohn's evidentiary burden under Smith. Rather, the Court finds only that Cohn should be allowed to present the issue to the jury.
Further, the Court notes that Diamond intends to challenge Cohn's allegation of asbestosis. Naturally, Cohn will have to convince the jury that he has asbestosis in order to recover anything for psychological injuries including fear of cancer.

Based on the foregoing, the Court concludes that Diamond has failed to meet its initial burden on summary judgment. Moreover, the Smith case, in which plaintiff was found to have offered insufficient proof, was decided after plaintiff had the opportunity to prove his case at trial. The sufficiency of evidence issue was not decided upon summary judgment. Whether Cohn has a genuine and serious fear of cancer is a question of fact for the jury to decide. The Court will not deprive him of an opportunity to prove his damages.

Accordingly;

IT IS ORDERED that the Motion for Partial Summary Judgment (Rec. Doc. 27) filed by defendant Diamond Offshore Management Company should be and is hereby DENIED.